UNITED
NATIONS
E
Economic and Social
Distr.
GENERAL
Council
E/CN.4/1996/38
15 January 1996
ENGLISH ONLY*
COMMISSION ON HUMAN RIGHTS
Fifty-second session
Item 8 (c) of the provisional agenda
QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED TO ANY
FORM OF DETENTION OR IMPRISONMENT
QUESTION OF ENFORCED OR INVOLUNTARY DISAPPEARANCES
Report of the Working Group on Enforced
or Involuntary Disappearances
* In view of its length, the present document is being issued in the
original language only, the Conference Services Division of the United Nations
Office at Geneva having insufficient capacity to translate documents that
greatly exceed the 32-page limit recommended by the General Assembly (see
Commission resolution 1993/94, para. 1)
GE.96-10218 (E)
E/cN. 4/1996/38
page 5
Introduction
1. The present report of the Working Group on Enforced or Involuntary
Disappearances is submitted pursuant to Commission on Human Rights
resolution 1995/38, entitled “Question of enforced disappearances”. 1/ In
addition to the specific tasks entrusted to the Working Group by the
Commission in this resolution, the Group has also taken into account other
mandates stemming from a number of resolutions adopted by the Commission,
entrusted to all special rapporteurs and working groups. These are explained
in chapter I, section A, “Legal framework for the activities of the Working
Group” . All these tasks have been given due attention and consideration by
the Working Group in the course of 1995.
2. During the year under review, the Working Group continued to carry out
the activities it has undertaken since its establishment. Its original role,
which it has described in previous reports, is to act as a channel of
communication between families of the disappeared persons and the Governments
concerned, with a view to ensuring that sufficiently documented and clearly
identified individual cases are investigated and the whereabouts of the
disappeared persons clarified. Since its inception, the Working Group has
analysed thousands of cases of disappearance and other information received
from Governments and non-governmental organizations, individuals and other
sources of information from all over the world in order to ascertain whether
such material falls under the Working Group's mandate and contains the
required elements; entered cases into its database; transmitted those cases to
the Governments concerned, requesting them to carry out investigations and to
inform the group about their results; forwarded the Governments' replies to
relatives or other sources; followed up investigations carried out by the
Governments concerned, as well as the inquiries made by the relatives or other
agencies or organizations; maintained a considerable correspondence with
Governments and the sources of information in order to obtain details on the
cases and the investigations; and examined allegations of a general nature
concerning specific countries with regard to the phenomenon of disappearances.
3. In addition to its original mandate, the Working Group has been entrusted
by the Commission with various other tasks. In particular, the Working Group
is to monitor States' compliance with their obligations deriving from the
Declaration on the Protection of All Persons from Enforced Disappearance.
States are under an obligation to take effective measures to prevent and
terminate acts of enforced disappearance, by making them continuing offences
1/ Since its creation in 1980, the Working Group has submitted a report
to the Commission annually, starting at the Commission's thirty-seventh
session. The document symbols of the last 14 reports are as follows:
E/CN.4/1435 and Add.1; E/CN.4/1492 and Add.1; E/cN.4/1983/14; CN.4/1984/21 and
Add.1 and 2; E/cN.4/1985/15 and Add.1; E/CN.4/1986/18 and Add.1;
E/CN.4/1987/15 and Corr.1 and Add.1; E/cN.4/1988/19 and Add.1; E/CN.4/1989/18
and Add.1; E/CN.4/1990/13; E/CN.4/1991/20 and Add.1; E/CN.4/1992/18 and Add.1;
E/CN.4/1993/25 and Add.1; E/CN.4/1994/26 and Corr.1 and 2 and Add.1;
E/CN. 4/1995/36.
E/CN. 4/1996/38
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under criminal law and establishing civil liability. The Declaration also
refers to the right to a prompt and effective judicial remedy, as well as
unhampered access of national authorities to all places of detention, the
right to habeas corpus, the maintenance of centralized registers of all places
of detention, the duty to investigate fully all alleged cases of
disappearance, the duty to try alleged perpetrators of disappearance before
ordinary (not military) courts, the exemption of the criminal offence of acts
of enforced disappearance from statutes of limitations, special amnesty laws
and similar measures leading to impunity. The Working Group reminded the
Governments of these obligations not only in the context of clarifying
individual cases, but also by taking action of a more general nature. During
the year under review, it drew the attention of Governments and
non-governmental organizations to the general or specific aspects of the
Declaration; it discussed with representatives of Governments and
non-governmental organizations how to solve specific problems in the light of
the Declaration and how to overcome obstacles to its implementation.
4. As in previous years, the Working Group has continued to apply the urgent
action procedure in cases that allegedly occurred within three months
preceding the receipt of the report by the Group, and has also promptly
intervened with Governments in cases in which relatives of missing persons, or
other individuals or organizations which have cooperated with the Group, or
their legal counsel, have been subjected to intimidation, persecution or other
reprisals.
S. The total number of cases being kept under active consideration as they
have not yet been clarified now stands at 43,508. In 1995, the Working Group
received some 824 new cases of disappearance in 27 countries. The number of
countries with outstanding cases of alleged disappearances was 63 in 1995.
6. As in the past, the present report reflects only communications or cases
examined before the last day of the third annual session of the Working Group,
which was 17 November 1995. Urgent action cases which may have to be dealt
with between that date and the end of the year, as well as communications
received from Governments after 17 November 1995, will be reflected in the
Working Group's next report.
7. In 1995, the Working Group continued to undertake a review of its methods
of work, which it had begun in 1994, bearing in mind, in particular, its
responsibilities under the Declaration on the Protection of All Persons from
Enforced Disappearance. It was guided by resolution 1995/38, paragraph 20, in
which the Commission on Human Rights requested the Working Group to again
identify obstacles to the realization of the provisions of the Declaration, to
recommend ways of overcoming those obstacles and to pursue, in this respect,
its dialogue with Governments and institutions concerned. The Group's general
recommendations and comments are contained in chapter I.F on the
implementation of the Declaration. Its country-specific observations, if any,
are to be found at the end of the respective country chapters in part II of
the present report. The Commission will find the Group's revised methods of
work in annex I to this report.
8. One member of the Group, Mr. Diego Garcia-Saymn, carried out a visit to
El Salvador in order to continue a process, begun last year, of examining,
E/cN. 4/1996/38
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with the Governments concerned, what to do with the large number of very old
cases of disappearance which remain pending on the Group's books, taking into
account, of course, the legitimate human rights concerns of the families. The
Working Group intends to pursue such discussions with other Governments in the
future.
9. Finally, the Working Group feels obliged to draw the Commission's
attention to another matter. The Group fully understands, particularly in a
situation of serious financial crisis, the efforts of the United Nations to
reduce unnecessary costs and expenditures. In a spirit of cooperation, the
Group agreed, therefore, to reduce its forty-seventh session from eight
working days to five, and to postpone its visit to Colombia from 1995 to 1996.
10. The Working Group has no understanding, however, of the way in which the
decision to reduce costs is being implemented. If one wishes to save money by
reducing the size of the reports of working groups, special rapporteurs and
other expert bodies established by the Commission, there should, first of all,
be clear guidelines on the page length which take into account the different
natures and types of work of the different mandates. While 32 pages may be a
reasonable limit for certain reports, it is certainly not the case for the
report of this Working Group, which deals with almost 70 countries. Secondly,
these guidelines should be brought to the attention of the respective entities
before they start to draft their reports to the Commission.
11. It is unacceptable to the Working Group to be told a few days before the
adoption of its report that a 32-page limit for reports may now be enforced,
when this had never been the case in the past. In showing once again its
willingness to cooperate, the Group made great efforts to cut its report down
to some 100 pages. Any further reduction would have been irreconcilable with
its duty to carry out its mandate and to report to the Commission in a
responsible manner.
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I. ACTIVITIES OF THE WORKING GROUP ON ENFORCED
OR INVOLUNTARY DISAPPEARANCES IN 1995
A. Legal framework for the activities of the Working Group
12. The legal framework for the activities of the Working Group has been
extensively described in its reports to the Commission on Human Rights at its
forty-first to fifty-first sessions.
13. In resolution 1995/38, the Commission, having expressed concern that the
practice of a number of States could run counter to the Declaration on the
Protection of All Persons from Enforced Disappearances, and deeply concerned
at the increase and spread of the practice of enforced disappearances in
various regions of the world, decided to extend for a three-year period the
mandate of the Working Group, in order to enable the Group to take into
consideration all such information as might be communicated to it on cases
brought to its attention, while maintaining the principle of annual reporting
by the Group.
14. Also in its resolution 1995/38, the Commission requested the Group to
report on its work to the Commission at its fifty-second session and to
continue to discharge its mandate discreetly and conscientiously; encouraged
the Group to submit to the Commission all information it deemed necessary and
any specific recommendations it might wish to make regarding the fulfilment of
its tasks; invited the Group to identify obstacles to the realization of the
Declaration on the Protection of All Persons from Enforced Disappearance, to
recommend ways of overcoming those obstacles, and to pursue in that respect
its dialogue with Governments and institutions concerned; also invited the
Group to continue to consider the question of impunity, in close collaboration
with the rapporteurs appointed by the Sub-Commission on Prevention of
Discrimination of Minorities and with due regard for the relevant provisions
of the Declaration; and requested the Group to pay particular attention to
cases of children subjected to enforced disappearance and children of
disappeared parents and to cooperate closely with the Governments concerned to
search for and identify these children.
15. In the same resolution, the Commission deplored the fact that some
Governments had never provided substantive replies concerning enforced
disappearances alleged to have occurred in their countries, nor acted on the
recommendations concerning them made in the reports of the Working Group, and
urged Governments to cooperate with the Working Group and to reply
expeditiously to the Group's requests for information; to intensify their
cooperation with the Working Group on any action taken pursuant to
recommendations addressed to them by the Group; to take legislative or other
steps to prevent and punish the practice of enforced disappearance; to take
steps to ensure that, when a state of emergency is introduced, the protection
of human rights is guaranteed, particularly as regards the prevention of
enforced disappearances; and to take steps to protect the families of
disappeared persons against any intimidation or ill-treatment to which they
might be subjected. The Commission also encouraged States to provide concrete
information on measures taken to give effect to the Declaration, as well as
obstacles encountered.
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16. The Commission also reminded Governments of the need to ensure that their
competent authorities conducted prompt and impartial inquiries whenever there
was reason to believe that an enforced disappearance had occurred in a
territory under their jurisdiction and recalled that, if allegations were
confirmed, perpetrators should be prosecuted. The Commission, for the
ninth time, repeated its request to the Secretary-General to ensure that the
Working Group received all necessary assistance, in particular the staff and
resources it required to perform its functions.
17. The Working Group has, furthermore, carefully considered and, where
appropriate, acted on provisions of the following resolutions which amplify
the Group's mandate as contained in resolution 20 (XXXVI) and 1995/38.
18. In its resolution 1995/40, the Commission invited once again the working
groups and the special rapporteurs to pay attention, within the framework of
their mandates, to the situation of persons detained, subjected to violence,
ill-treated or discriminated against for having exercised the right to freedom
of opinion and expression. Indeed, many of the disappearances reported to the
Working Group may have been caused by the fact that persons have exercised
this right. To the extent possible, the Group has tried to reflect in its
report relevant information received on this subject.
19. In its resolution 1995/43, the Commission urged all thematic special
rapporteurs and working groups to address as appropriate the consequences of
the acts, methods and practices of terrorist groups. The Working Group has
taken into consideration information received in this connection and reflected
it in the appropriate country subsections.
20. In its resolution 1995/53, the Commission invited its special rapporteurs
and representatives, as well as working groups to continue to include in their
recommendations, whenever appropriate, proposals for specific projects to be
realized under the programme of advisory services.
21. In its resolution 1995/57, the Commission called upon relevant
rapporteurs, working groups and experts, in accordance with their mandates, to
seek information on situations which could lead to internal displacement and
to include relevant information and recommendations thereon in their reports
to the Commission. The Working Group has reflected any information received
in this connection in the relevant country subsections.
22. In its resolution 1995/75, the Commission requested all representatives
of United Nations human rights bodies, as well as treaty bodies monitoring the
observance of human rights, to continue to take urgent steps, in conformity
with their mandates, to help prevent the occurrence of intimidation, and
reprisals. The Commission further requested such representatives to include
in their respective reports a reference to allegations of intimidation or
reprisal, as well as an account of action taken by them in that regard. The
Working Group has reflected in the country subsections cases in which it has
taken action in the framework of its prompt intervention procedure.
23. In its resolution 1995/79, the Commission recommended that within their
mandates special rapporteurs, special representatives and working groups of
the Commission and the Sub-Commission pay special attention to the plight of
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street children. The Working Group has paid close attention to this
resolution, but has received no allegations concerning the disappearance of
street children in 1995.
24. In its resolution 1995/80, the Commission called upon all special
representatives, special rapporteurs, independent experts and thematic working
groups to take fully into account the recommendations contained in the Vienna
Declaration and Programme of Action. In section II, paragraph 62, of the
Vienna Programme of Action, the World Conference on Human Rights, welcoming
the adoption by the General Assembly of the Declaration on the Protection of
All Persons from Enforced Disappearance, called upon all States to take
effective legislative, administrative, judicial or other measures to prevent,
terminate and punish acts of enforced disappearances. The World Conference on
Human Rights reaffirmed that it was the duty of all States, under any
circumstances, to make investigations whenever there was reason to believe
that an enforced disappearance had taken place on a territory under their
jurisdiction and, if allegations were confirmed, to prosecute its
perpetrators. In accordance with the Vienna Declaration and Programme of
Action and the request of the Commission, the Working Group has further
developed its efforts to monitor the compliance by States with the provisions
of the Declaration on the Protection of All Persons from Enforced
Disappearance.
25. In its resolution 1995/85, the Commission requested, among others, human
rights treaty bodies, other special rapporteurs responsible for various human
rights questions and United Nations bodies and organs to cooperate with and
assist the Special Rapporteur on violence against women in the performance of
the tasks and duties mandated, in particular to respond to requests for
information on violence against women, its causes and its consequences; and
in its resolution 1995/87, the Commission called on the thematic
special rapporteurs and working groups to include in their reports
gender-disaggregated data. Such data have, to the extent possible, been
included in the statistical summary of countries found in annex III to the
present report.
26. In its resolution 1995/88, the Commission invited the special
rapporteurs, special representatives and working groups of the Commission,
acting within their mandates, to seek information, where appropriate, on
problems resulting in mass exoduses of populations or impeding their voluntary
return home and to include such information in their reports. The Working
Group has taken information received in this connection into account and
reflected it, where appropriate, in the relevant country chapters.
B. Meetings and missions of the Working Group
27. The Working Group held three sessions in 1995. The forty-fifth session
was held in New York from S to 9 June, and the forty-sixth and forty-seventh
sessions were held at Geneva from 21 to 25 August and from 13 to 17 November,
respectively. With regard to the third annual session, in view of the serious
financial situation facing the Organization at the end of the year and in
response to an appeal from United Nations Headquarters for working groups and
committees meeting in late 1995 to reduce the length of their sessions, the
Working Group, in a spirit of cooperation, made an exceptional effort to
E/cN. 4/1996/38
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reduce its forty-seventh session from eight working days to five which,
unfortunately, prevented the Working Group from meeting with non-governmental
organizations at that session. During its 1995 sessions, the Working Group
met with representatives of the Governments of Chile, Colombia, Guatemala,
Honduras, India, the Islamic Republic of Iran, Morocco, South Africa and Yemen
as well as with the National Commission for Human Rights Mexico. The Group
also met with representatives of human rights organizations, associations of
relatives of missing persons and families or witnesses directly concerned with
reports of enforced disappearances.
28. As in previous years, the Working Group examined information on enforced
or involuntary disappearances received from both Governments and
non-governmental organizations and decided, in accordance with its methods of
work, on the transmission of such reports or observations received thereon to
the Governments concerned. It also requested Governments to provide
complementary information whenever necessary for the clarification of cases.
29. In September 1995, one member of the Working Group, Mr. Diego
Garcia-Saymn, carried out a visit to El Salvador.
30. The Government of Colombia addressed an invitation to the Working Group
to visit the country. The Working Group agreed to undertake this visit in the
course of 1996.
31. On 21 July 1995, the Working Group addressed a letter to the Governments
of India, Iraq and Turkey, expressing its interest in visiting these countries
during the course of 1996, in order to intensify its dialogue with the
authorities of the countries most directly concerned with the issue of
disappearances, as well as with the representatives of the families of those
people reportedly disappeared. At the time of the adoption of the present
report, no reply to its request had yet been received by the Working Group
from Iraq or Turkey. However, the Government of India declined to invite the
Working Group.
C. Communications with Governments
32. In 1995, the Working Group transmitted 824 new cases of enforced or
involuntary disappearance to the Governments concerned; 359 of the cases
transmitted were reported to have occurred in 1995; 163 were transmitted under
the urgent action procedure, of which 39 were clarified during the year. The
majority of newly reported cases which allegedly occurred in 1995 relate to
Algeria, Colombia, Mexico, Pakistan, the Sudan, Turkey and Sri Lanka. Many of
the other cases received were referred back to the sources as they lacked one
or more elements required by the Working Group for their transmission, or
because it was not clear whether they fell within the Working Group's mandate;
other cases were considered inadmissible within the context of that mandate.
33. By letters dated 31 January and 28 July 1995, the Working Group reminded
the Governments concerned of reports of disappearances transmitted during the
previous six months under the urgent action procedure. By letter dated
28 April 1995, the Working Group informed Governments of the dates of its
three annual sessions for 1995.
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34. By letter dated 23 June 1995, the Working Group reminded all Governments
of the total number of outstanding cases remaining before it and, when
requested, retransmitted the summaries of those cases or the diskettes
containing those summaries to them.
35. As has been its practice in the past, following each of its
three sessions, the Working Group informed the Governments of decisions it had
made with respect to cases of disappearance in their countries. To this end,
the Working Group sent letters on 23 June, 30 August and 15 December 1995 to
the Governments concerned informing them whether a case had been clarified, on
the basis of information provided by the source or the Government; whether a
case had been placed under the six-month rule; retransmitted to the Government
updated with new information from the source; or whether the information
submitted by the Government with respect to a specific case was insufficient
to consider the case clarified. The Group also transmitted to Governments
concerned observations provided by the sources on the Government's replies.
36. On 30 August 1995, the Working Group transmitted to the Governments
concerned the allegations which it had received from non-governmental
organizations concerning, in particular, obstacles to the implementation
of the Declaration.
D. Communications with other United Nations offices
37. Taking into account the ever-increasing number of United Nations field
operations with human rights components, during 1995 the Working Group sought
to establish contact with these offices in an effort to take advantage of
their unique position on the ground in order to improve its information flow
with regard to disappearances. At its forty-fifth session, the Working Group
decided to address a letter to the Director of the United Nations Mission for
the Verification of Human Rights and of Compliance with the Commitments of the
Comprehensive Agreement on Human Rights in Guatemala (MINUGUA), seeking to
establish an interchange of information between the Working Group and the
mission with respect to individual cases of enforced or involuntary
disappearances in Guatemala. To this end, the Working Group has developed
a fruitful dialogue with MINUGUA on both newly reported and pending cases
of disappearance.
38. The Working Group also sought information from the human rights field
operation in Rwanda on the situation with regard to disappearances in that
country. This information is reflected in the Rwanda country chapter.
E. Communications with non-governmental organizations
and relatives of missing persons
39. The Working Group has continued to attach great importance to its
contacts with non-governmental organizations and relatives of missing persons,
and maintained close contact with sources of information throughout the year,
informing them on a regular basis of the state of its investigation into cases
of concern to them, as well as the replies it had received from Governments
in this respect. The Group also invited these organizations to present
information at its three annual sessions and to submit observations relating
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to the general situation affecting the phenomenon of disappearances in
countries of importance to them. The Group received a great deal of
information orally and in writing from them.
40. At the same time, however, the Working Group has noted with concern that
in some cases non-governmental organizations have failed to maintain contact
with their source, or in other cases, have relegated them to their archives,
thus seriously hindering efforts by the Working Group to follow up on
individual cases.
41. In July 1995, the Working Group addressed a letter to a number of
non-governmental organizations concerning the implementation of the
Declaration in countries of concern to them, requesting them to provide the
Group with any pertinent information, in particular, concrete examples of
obstacles encountered in this regard. This information is reflected in the
appropriate country chapters.
42. As in previous years, the Working Group received reports and expressions
of concern from non-governmental organizations, associations of relatives of
disappeared persons and individuals about the safety of persons actively
engaged in the search for missing persons, in reporting cases of disappearance
or in the investigation of cases. In some countries, the mere fact of
reporting a disappearance entailed a serious risk to the life or security of
the person making the report or to his or her family members. In addition,
individuals, relatives of missing persons and members of human rights
organizations were frequently harassed and threatened with death for reporting
cases of human rights violations or investigating such cases.
F. Implementation of the Declaration on the Protection
of All Persons from Enforced Disappearance
43. The proclamation by the General Assembly on 18 December 1992 in its
resolution 47/133 of the Declaration on the Protection of All Persons from
Enforced Disappearance was a milestone in the united efforts to combat the
practice of disappearance. Many proposals and recommendations which the
Working Group has adopted over the years and included in its annual reports
have been reflected in the Declaration. In accordance with the Declaration,
the systematic practice of disappearance is of the nature of a crime against
humanity and constitutes a violation of the right to recognition as a person
before the law, the right to liberty and security of the person, and the
prohibition of torture, and it also violates or constitutes a grave threat
to the right to life. States are under an obligation to take effective
legislative, administrative, judicial or other measures to prevent and
terminate acts of enforced disappearance, in particular to make them
continuing offences under criminal law and to establish civil liability.
44. The Declaration also refers to the right to a prompt and effective
judicial remedy, as well as unhampered access of national authorities to
all places of detention, the right to habeas corpus, the maintenance of
centralized registers of all places of detention, the duty to investigate
fully all alleged cases of disappearance, the duty to try alleged perpetrators
of disappearances before ordinary (not military) courts, the exemption of
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the criminal offence of acts of enforced disappearance from statutes of
limitations, special amnesty laws and similar measures leading to impunity.
45. In its resolutions 1993/35, 1994/39 and 1995/38, the Commission on Human
Rights, invited all Governments to take appropriate legislative or other steps
to prevent and punish the practice of enforced disappearances, with special
reference to the Declaration, and to take action to that end nationally,
regionally and in cooperation with the United Nations. In the same
resolutions, the Commission requested the Working Group to take into account
the provisions of the Declaration, and invited it to cite in future reports
any obstacles to the proper application of the Declaration and to recommend
means of overcoming them.
46. Despite various efforts by the Working Group to remind Governments of
their obligation to implement the provisions of the Declaration by taking
appropriate legislative, administrative, judicial or other measures, only
very little progress has been made in practice. With some exceptions, States
have not begun to take consistent steps to incorporate in their national
legislation the principles set out in the Declaration. The Working Group
wishes to stress that the obligation to implement the Declaration does not
only apply to States where acts of enforced disappearances actually occurred
in the past or continue up to the present day. In particular, legislative and
other preventive measures shall be taken by all States in order to ensure that
acts of disappearance will not occur in the future.
47. With a view to focusing the attention of Governments more effectively on
the relevant obligations deriving from the Declaration, the Working Group
decided, at its forty-seventh session, to adopt the following general comments
on those provisions of the Declaration that might need further explanation in
the light of the experience of the Working Group in its communications with
Governments.
General comment on article 3 of the Declaration
48. Article 3 of the Declaration on the Protection of All Persons from
Enforced Disappearance stipulates that “each State shall take effective
legislative, administrative, judicial or other measures to prevent and
terminate acts of enforced disappearance in any territory under its
jurisdiction”. This is a broad obligation which is assumed by States and is
primarily an obligation to do something. This provision cannot be interpreted
in a restrictive sense, since what it does is to serve as the general model
for the purpose and nature of the measures to be taken, as well as for the
content of the international responsibility of the State in this regard.
49. The purpose of the measures to be taken is clear: “to prevent and
terminate acts of enforced disappearance” . Consequently, the provision calls
for action both by States in any territory under its jurisdiction of which
acts of enforced disappearance might have occurred in the past and by States
in which such acts have not occurred. All States must have appropriate
machinery for preventing and terminating such acts and are therefore under an
obligation to adopt the necessary measures to establish such machinery if they
do not have it.
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SO. With regard to the nature of the measures to be taken, the text of the
article clearly states that legislative measures are only one kind. In
referring to “legislative, administrative, judicial measures, it is
clear that, as far as the Declaration is concerned, it is not enough to have
formal provisions designed to prevent or to take action against enforced
disappearances. It is essential that the entire government machinery should
adopt conduct intended for this purpose. To this end, administrative
provisions and judicial decisions play a very important role.
51. The article also refers to “other measures”, thus making it clear that
the responsibility of the State does not stop at legislative, administrative
or judicial measures. These are mentioned only by way of example, so it is
clear that States have to adopt policy and all other types of measures within
their power and their jurisdiction to prevent and terminate disappearances.
This part of the provision must be understood as giving the State a wide range
of responsibility for defining policies suited to the proposed objective.
52. It is, however, not enough for legislative, administrative, judicial or
other measures to be taken, since they also have to be “effective” if they are
to achieve the objective of prevention and termination. If the facts showed
that the measures taken were ineffective, the international responsibility of
the State would be to take other measures and to adapt its policies so that
effective results would be achieved. The main criterion for determining
whether or not the measures are suitable is that they are effective in
preventing and, as appropriate, terminating acts of enforced disappearance.
53. Consequently, the provision contained in article 3 must be understood as
the general framework for guiding States and encouraging them to adopt a set
of measures. It must be understood that the international responsibility of
States in this regard arises not only when acts of enforced disappearance
occur, but also when there is a lack of appropriate action to prevent or
terminate such acts. Such responsibility derives not only from omissions or
acts by the Government and the authorities and officials subordinate to it,
but also from all the other government functions and mechanisms, such as
the legislature and the judiciary, whose acts or omissions may affect the
implementation of this provision.
General comment on article 4 of the Declaration
54. Article 4.1 of the Declaration on the Protection of All Persons from
Enforced Disappearance stipulates that “all acts of enforced disappearance
shall be off ences under criminal law punishable by appropriate penalties which
shall take into account their extreme seriousness” . This obligation applies
to all States regardless of whether acts of enforced disappearance actually
take place or not. It is not sufficient for Governments to refer to
previously existing criminal offences relating to enforced deprivation of
liberty, torture, intimidation, excessive violence, etc. In order to comply
with article 4 of the Declaration, the very act of enforced disappearance as
stipulated in the Declaration must be made a separate criminal offence.
SE. The preamble of the Declaration defines the act of enforced disappearance
“in the sense that persons are arrested, detained or abducted against their
will or otherwise deprived of their liberty by officials of different branches
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or levels of Government, or by organized groups or private individuals acting
on behalf of, or with the support, direct or indirect, consent or acquiescence
of the Government, followed by a refusal to disclose the fate or whereabouts
of the persons concerned or a refusal to acknowledge the deprivation of their
liberty, which places such persons outside the protection of the law”. States
are, of course, not bound to follow strictly this definition in their criminal
codes. They shall, however, ensure that the act of enforced disappearance is
defined in a way which clearly distinguishes it from related offences such
as enforced deprivation of liberty, abduction, kidnapping, incommunicado
detention, etc. The following three cumulative minimum elements should be
contained in any definition:
(a) Deprivation of liberty against the will of the person concerned;
(b) Involvement of governmental officials, at least indirectly by
acquiescence;
(c) Refusal to disclose the fate and whereabouts of the person
concerned.
56. The term “offences under criminal law” refers to the relevant domestic
criminal codes that are to be enforced by competent ordinary courts,
i.e. neither by any special tribunal, in particular military courts (art. 16.2
of the Declaration) , nor by administrative agencies or tribunals. The persons
charged with the offence of enforced disappearance shall enjoy all guarantees
of a fair trial established in international law (art. 16.4 of the
Declaration)
57. It falls into the competence of States to establish the appropriate
penalties for the offence of enforced disappearance in accordance with their
domestic legal standards. They shall, however, take into account the “extreme
seriousness” of acts of enforced disappearance. In the absence of mitigating
circumstances, appropriate penalties, therefore, in principle mean prison
sentences.
58. According to article 4.2, “mitigating circumstances may be established
in national legislation for persons who, having participated in enforced
disappearances, are instrumental in bringing the victims forward alive or in
providing voluntarily information which would contribute to clarifying cases
of enforced disappearance”. This provision must, however, be read in
conjunction with article 18 which states:
“1. Persons who have, or are alleged to have committed offences
referred to in article 4, paragraph 1, above, shall not benefit from
any special amnesty law or similar measures that might have the effect
of exempting them from any criminal proceedings or sanction.
“2. In the exercise of the right of pardon, the extreme seriousness of
acts of enforced disappearance shall be taken into account.”
E/cN. 4/1996/38
page 17
G. Special process on missing persons in the
territory of the former Yugoslavia
59. Subsequent to the report presented to the fifty-first session of the
Commission on Human Rights by Mr. Manfred Nowak, expert member of the
Working Group on Enforced or Involuntary Disappearances in charge of the
mandate (E/CN.4/1995/37), and owing to the importance of the issue of missing
persons in the territory of the former Yugoslavia, the Commission on Human
Rights adopted resolution 1995/35 entitled “Special process dealing with the
problem of missing persons in the territory of the former Yugoslavia”. It,
thus, entrusted the expert with an independent mandate, the first one
established by the Commission which is of a country-specific and thematic
character dealing with one particular violation of human rights, the
phenomenon of enforced or involuntary disappearances within the frontiers of
the former Yugoslavia. With a view to determining the fate of thousands of
missing persons and relieving the suffering of their families, the expert
decided to continue using the methods of work of the Working Group on Enforced
or Involuntary Disappearances, adapted to the specific situation of the
former Yugoslavia.
60. The activities of Mr. Nowak are summarized in his report to the
Commission at its present session (E/CN.4/1996/36)
E/CN. 4/1996/38
page 18
II. INFORMATION CONCERNING ENFORCED OR INVOLUNTARY DISAPPEARANCES
IN VARIOUS COUNTRIES REVIEWED BY THE WORKING GROUP
Afghanistan
61. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Afghanistan.
62. The two outstanding cases concern a Jordanian journalist who reportedly
disappeared in Jalalabad, province of Nangarhar, in 1989 while on assignment,
and an American citizen of Afghan origin who allegedly disappeared in 1993
when he was on a visit to Afghanistan.
63. Although many more cases of disappearance may have occurred in
Afghanistan, in particular during the period 1978 to 1979, individual cases
have not been brought to the Working Group's attention to allow it, in
accordance with its methods of work, to take action.
64. Despite a retransmittal, at the Government's request, of the outstanding
cases, no information has been received by the Working Group from the
Government of Afghanistan with regard to these cases. The Working Group is,
therefore, unable to report on the fate and whereabouts of the disappeared
persons.
Algeria
65. During the period under review, the Working Group transmitted to the
Government of Algeria 103 newly reported cases of disappearance, 20 of which
reportedly occurred in 1995, and 2 of which were sent under the urgent action
procedure. During the same period, it clarified one case when it was reported
that the person concerned had been released and it retransmitted one case,
updated with new information from the source.
66. The one case transmitted in the past reportedly occurred in 1994 and
concerned a 38-year-old man who was allegedly abducted from his home by the
security forces.
67. All of the newly reported cases occurred between 1993 and 1995. The
security forces were alleged to be responsible for all the arrests and
subsequent disappearances, which reportedly occurred throughout the country,
although mainly in Algiers. A number of those disappeared are reported to
have been members or sympathizers of the Islamic Salvation Front (FIS)
One case concerned a British resident who was reportedly detained upon his
arrival at the airport in Algiers. Another case concerned a person holding
dual Algerian and French citizenship. The victims were from a variety of
professions including medical doctors, journalists, university professors,
students, civil servants and farmers.
68. During the period under review, the Government of Algeria provided
information on three individual cases. In one case the person concerned had
been detained by the security services and released after 48 hours; with
regard to the 2 other cases, the persons concerned had not been arrested nor
had they been the subject of any judicial proceedings.
E/cN. 4/1996/38
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Observations
69. The Working Group expresses its concern at the recent increase in
violence in Algeria and, in particular, at the high level of alleged
disappearances brought to its attention. It wishes to remind the Government
of its responsibilities under the Declaration to take effective measures to
prevent, terminate and punish all acts of enforced disappearance.
Angola
70. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Angola. The Group
considered three cases clarified on the basis of information previously
submitted by the Government in which it reported that the persons concerned
had participated in the 1977 coup d'etat , were taken prisoner, put on trial,
convicted and executed by firing-squad. The source subsequently confirmed
that their relatives had been executed; however, they denied that the persons
concerned had been tried or that they had participated in the coup .
71. The four cases which remain pending on the Working Group's books concern
four men who were allegedly arrested in 1977 by the Angolan security forces,
in particular by DISA (Angolan information and security forces) . Two of them
were reportedly arrested because they were suspected of supporting UNITA.
72. With regard to the four outstanding cases, during the period under
review the Government of Angola informed the Working Group that the efforts
undertaken by the Government to bring to light the fate of these four persons
had been to no avail. The police and administrative archives in the towns of
Huambo and Onjiva had been totally destroyed. The Permanent Representative of
Angola to the United Nations Office at Geneva stated that he himself, together
with a team from the Attorney-General's Office, had gone to these towns, but
had not been able to find any additional information. The Government further
stated that the war had been extremely violent and that documents had been
vandalized and burned. It said that, unfortunately, no information on the
fate of these four persons could ever be obtained. The Government also said
that it sympathized with the suffering of the relatives and friends of the
disappeared persons.
Argentina
73. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Argentina.
74. The vast majority of the 3,462 reported cases of disappearance in
Argentina occurred between 1975 and 1978 under the military Government,
during its campaign against left-wing guerrillas and their sympathizers.
75. During the same period, a number of non-governmental organizations
addressed themselves to the Working Group with regard to their ongoing quest
to have the fate of the persons who disappeared in Argentina brought to light,
in particular demanding that the Argentine State present any documentation and
other information in its possession on the human consequences of the so-called
E/CN. 4/1996/38
page 20
war against subversion, and especially the consequences of such operations for
persons on whose whereabouts as disappeared persons information had been
requested.
76. In this connection, there are a number of cases before the courts about
which the Working Group has been amply informed during the course of 1995. It
was brought to the Working Group's attention that a decision was taken by a
judge calling for the State to preserve the documentation and to make it
available to the courts. It was reported that the Government of Argentina had
appealed against the decision, but that the Federal Chamber of Appeals in
Administrative Matters had upheld it. The Government is said to have
subsequently filed an extraordinary appeal to submit the appellate court's
decision to the Supreme Court.
77. In a legal memorandum ( amicus curiae ) a non-governmental organization
supported the request, submitted by family members to the Buenos Aires Federal
Court for Criminal and Correctional Matters on 27 June 1995, to require the
President of the Republic and the ministers with administrative jurisdiction
over this question to supply, within a specific time period, all relevant
information about the circumstances surrounding the detention or abduction
and the fate of the persons who disappeared from the Naval Engineering School
between 1976 and 1983. The right to the truth is said to belong not only to
the relatives, but to society as a whole.
78. Abundant information was submitted to the Working Group concerning
statements made in the Argentine press by former military officials, in which
they are reported to have stated that, between 1976 and 1978, some 1,500 to
2,000 detainees were thrown alive from naval airplanes into the ocean. A
number of organizations made reference to the situation of children abducted
or born while the mother was in detention.
79. By notes verbales dated 5 October and 8 November 1995, the Government
of Argentina submitted its reply to the allegations transmitted to it by
the Working Group. The Government stated that the policy adopted by the
Government was to investigate and try those responsible, while setting limits
to judicial investigations in the interest of consolidating democracy during a
period of transition. Among other measures, the National Commission on the
Disappearance of Persons (CONADEP) was established. CONADEP was given the
express mission of “clarifying questions relating to the disappearance of
persons in Argentina” for which purpose it was charged with “ascertaining
the fate or whereabouts of disappeared persons and any other circumstances
relating to their whereabouts”. The report produced by CONADEP, Nunca M Is ,
describes the disappearance of the evidence that would have made it possible
to locate the disappeared persons.
80. In its conclusions, the report notes that “no legal records were kept on
the unlawful situation in which those aberrant deeds were perpetrated, as a
result of which no information was handed on to subsequent constitutional
Governments and administrations nor were any records left in court files”. In
Argentina it has so far not been possible to obtain any other facts than those
contained in the files of CONADEP, which contain the statements by surviving
victims or relatives.
E/cN. 4/1996/38
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81. The government department responsible for preserving and completing the
archives has repeated its standing invitation to all persons who are able to
provide information to submit it to the department. Similarly, in a public
statement made on 25 April 1995, the head of the General Staff of the Army,
Lieutenant-General Martin Balza, invited any of his subordinates with
information that could shed light on the events to submit it through
institutional channels.
82. In the judicial sphere, legitimate applications for clarification of the
fate of disappeared persons have been examined, despite the fact that criminal
proceedings may no longer be brought by virtue of Acts 23,492 and 23,521 and
because of the amnesty decrees. The requisite procedural steps concerning the
cases in question are being carried out even though in the case of one of them
the court handling the matter, the National Court of Criminal Appeal and
Federal Correctional Court in the federal capital, turned down the application
even though it had examined the merits of the amicus curiae brief referred to
in the written reply.
83. As regards the return of children who were abducted or born during their
mother's captivity, Decree No. 1306/92 established the National Commission for
the Right to an Identity, whose aim is to activate the search for disappeared
children and to determine the whereabouts of abducted and disappeared children
whose identity is unknown, as well as of children born while their mothers
were unlawfully deprived of their liberty, and of other children who are
unaware of their identity because they were separated from their biological
parents for various reasons.
84. The Commission carries out systematic and thorough investigations in
response to requests from the Association of Grandmothers of the Plaza de Mayo
or of its own initiative. In all, the Commission holds 49 files, 24 of which
were opened recently. Of the 49, 41 are being processed, 7 have already been
closed and 1 directed elsewhere. Twenty-five files concerned cases of the
children of disappeared persons, 22 trafficking in children and 1 file
concerns a question of filiation. The Association of Grandmothers of the
Plaza de Mayo has requested information about 125 individuals and the
Commission itself 26.
85. As an annex to the above-mentioned statement, the Government of Argentina
provided the Working Group with a list containing the names of children who
have so far been identified, located and returned to their respective
families.
Observations
86. The Group understands how difficult it is to gather all the information
necessary to determine the whereabouts of thousands of victims of enforced
disappearance, and is following with interest the efforts being made by the
National Commission for the Right to an Identity to identify and find
disappeared children.
87. However, most of the outstanding cases of disappearance have remained
unelucidated. For this reason, the Group recalls that, in accordance with the
provisions of the Declaration on the Protection of All Persons from Enforced
E/CN. 4/1996/38
page 22
Disappearance, the conduct of investigations “thoroughly and impartially”
(art. 13) remains the Argentine State's international obligation “for as long
as the fate of the victim of enforced disappearance remains unclarified”
(art. 13, para. 6).
88. This obligation implies that it is the State's duty to pursue such
investigations and clarifications by all the means at its disposal and also
to abstain from any action likely to delay or render such investigations or
clarifications difficult. For this reason, the Government should refrain from
taking legal steps that hamper the results of legal proceedings designed to
preserve information or documentation that could be of use in determining the
whereabouts of disappeared persons.
Bolivia
89. During the period under review, no new cases of disappearances were
transmitted by the Working Group to the Government of Bolivia.
90. The majority of the 48 cases of disappearance reported to the
Working Group occurred between 1980 and 1982, periods when general and
often massive violence spread around the country, generated by two military
coups d'etat . Twenty of these cases have been clarified.
91. Despite a full retransmittal in July 1995, at the request of the
Government of Bolivia, of the outstanding cases, no further information has
been received from the Government concerning these cases. The Working Group
is, therefore, unable to report on the fate and whereabouts of the disappeared
persons.
Brazil
92. During the period under review, the Working Group transmitted three newly
reported cases of disappearances to the Government of Brazil. One case
occurred in 1994 and two in 1995; all were sent under the urgent action
procedure. During the same period it retransmitted one case, updated with new
information from the source.
93. The majority of the 57 cases of disappearance in Brazil reported to the
Working Group occurred between 1969 and 1975, under the military Government,
in particular during the guerrilla warfare in the Araguaia region.
94. The three newly reported cases are all said to have occurred in
Rio de Janeiro and to have been carried out by members of the military police.
One of the persons concerned is reported to be a lawyer and leader of the
civil servants union at the National Library. The other two cases concern
persons who are alleged to have been detained by uniformed members of the
military police and taken in a vehicle to an unknown destination.
95. During the period under review, the Government of Brazil provided
information on one outstanding case in which it reported that the police
investigation into the subject's disappearance had not yet been concluded and
that there were ongoing efforts to try and determine the person's whereabouts.
It stated that there were no indications of any participation of the army or
E/cN. 4/1996/38
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police into the disappearance, but that there was reason to believe that the
subject might have been involved with drugs. The submitting source, however,
has informed the Group that the lawyer working for the subject's family has
reported that no evidence has been produced to support the claim of his
involvement with drugs. The Government reported that the investigation into
the case was being followed by a public prosecutor and non-governmental
organizations active in the field of human rights in Rio de Janeiro.
96. Last year the Working Group sent a letter to countries with a number of
very old cases of disappearance pending on the Group's books, in which the
Group sought to examine, together with the Government concerned, what to do
with such cases, taking into account, of course, the legitimate human rights
concerns of the families. On 2 October 1995, the Government of Brazil
addressed a letter to the Chairman of the Working Group forwarding to him a
copy of the bill submitted by the Government to Congress which deals with the
recognition as dead of the persons who were missing in connection with their
participation or presumed participation in political activities in the period
from 2 September 1961 to 15 August 1979. The bill provides for the wife or
husband, or female or male companion, descendant, ascendant or collateral
relative until the fourth grade, to request the registration of a death
certificate. Once the death is recognized, under the terms of the bill the
above-mentioned persons may request compensation.
Observations
97. The Working Group welcomes the initiative by the Government of Brazil
to submit to the Congress a draft law which refers to the procedure for
the declaration of presumed death of persons subjected to enforced
disappearance for political reasons, during the period from 2 September 1961
to 15 August 1979. The Group takes note with appreciation that, in various
steps of the procedure established by this draft law, the participation of the
families is foreseen which, in the Group's judgement, is an essential
requisite. The Group will follow closely the process of implementation of
this draft law, should it be promulgated, and wishes to assure the Government
of Brazil of its readiness to assist the Government in whatever way it may
deem necessary.
Burkina Faso
98. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Burkina Faso.
99. The three outstanding cases of disappearance reported to the
Working Group concerned two soldiers and a university professor, all of whom
were reportedly arrested in 1989, together with 27 other persons, on charges
of having participated in an alleged conspiracy against the Government.
100. Despite several reminders, no information has ever been received by the
Working Group from the Government regarding these cases. The Working Group
is, therefore, unable to report on the fate and whereabouts of the disappeared
persons.
E/CN. 4/1996/38
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Burundi
101. During the period under review, the Working Group transmitted 14 newly
reported cases of disappearance to the Government of Burundi, all of which
occurred in 1994.
102. All of the 31 previously reported cases of disappearance in Burundi
occurred in Bujumbura in November and December 1991, following attacks against
the Government in the capital and the north-western provinces of Cibitoke and
Bubanza. The disappeared persons, of 1-lutu origin, were reportedly arrested by
members of the security forces, dominated by the Tutsi minority. Most of them
were later held at Mura and at paratroopers' barracks in Bujumbura, while
others allegedly disappeared while in custody at the headquarters of the
gendarmerie's special investigations brigade, in Bujumbura.
103. The newly reported cases of disappearance allegedly concern 1-lutus, most
of whom had reportedly been assembled and held by members of the security
forces in the playing field of the Ecole technique supérieure in Bujumbura.
These persons, reportedly suspected of possessing arms, are said to have been
arrested and taken away to an unknown destination by members of the armed
forces. Another case of disappearance relates to a colonel, responsible for
military schools and the Training Centre of the Burundese Army, who was
reportedly abducted as he was coming out of the house of one of his
colleagues, where he went to collect documents before leaving for a seminar
abroad.
104. During the period under review information of a general nature was
brought to the Working Group's attention. The recent cases of disappearances
brought to the knowledge of the Working Group on Enforced or Involuntary
Disappearances in 1995 are said to continue to testify to the worsening
climate of violence and internal strife prevailing in many provinces of
Burundi, including the capital, Bujumbura, in the aftermath of the failed
putsch of 21 October 1993, the murder of the first democratically elected
President of Burundi, and the mass killings which followed. Due to ethnic
tensions between Hutu and Tutsi and to the prevailing impunity, and despite
the curfew proclaimed throughout the country on 18 June 1995, it is estimated
that up to 800 civilians are killed every month, and three to four members of
the military lose their lives every day as a result of attacks by unidentified
armed groups.
105. Due to the confrontation between the army and armed groups and to the
cleansing operations undertaken by the military in the northern suburbs of
Bujumbura such as Kamenge, up to several tens of thousands of people, mainly
of Hutu origin, have allegedly fled to seek refuge in the surrounding hills,
without proper shelter, water or food, or have been dispersed within the
country. It was alleged that during these operations many people were killed
or disappeared. A number of dead bodies were later found in the hills. In
other rural areas of the country, especially in the north, many Tutsi, fleeing
killings by Hutus, have reportedly found refuge in camps for internally
displaced persons.
106. Despite the Convention of Government of 10 September 1994 agreed upon by
the coalition Government, no effective measure has reportedly yet been
E/cN. 4/1996/38
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implemented to end impunity or bring to justice the perpetrators of killings,
acts of torture or disappearance, in violation of article 14 of the
Declaration on the Protection of All Persons from Enforced Disappearance. No
reform has been undertaken so far to redress the failings of the judicial
system or restructure the Burundese armed forces and the police.
107. So far, no measures have reportedly been taken to end the impunity
enjoyed by the armed forces. With respect to the judiciary, the present
administrative structure is said to be far from adequate to prosecute properly
all those responsible for the latest human rights violations. The main
obstacles reportedly lie in the lack of human and financial resources, the
lack of balance in ethnic representation, and the poor standards for
impartiality and independence.
108. Although several reminders have been sent, no information has ever been
received by the Working Group from the Government of Burundi with regard to
these cases of disappearance. The Working Group is, therefore, unable to
report on the fate and whereabouts of the disappeared persons.
Observations
109. The Working Group is deeply concerned at reports on the worsening climate
of violence and internal strife prevailing in many provinces of Burundi, and
at the lack of effective measures to end impunity or bring to justice
perpetrators of acts of enforced disappearance. It wishes to remind the
Government of its obligation under the Declaration to prevent, terminate and
punish all acts of enforced disappearance.
110. The Working Group, in particular, stresses the obligation of the
Government, under articles 13 and 14 of the Declaration, thoroughly and
impartially to investigate all allegations of enforced disappearance and to
bring to justice all perpetrators.
Cameroon
111. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Cameroon.
112. All of the six cases reported to the Working Group occurred in 1992.
The cases concerned S youngsters aged 13 to 17, including 3 brothers, who were
reportedly seen being taken into police custody in Bamenda in February 1992 at
the time of the arrest of leaders of the Cameroon Anglophone Movement, and
over 40 peasants, following a peaceful demonstration. The father of the three
brothers also disappeared, following his inquiries to determine the
whereabouts of his children.
113. During the period under review, no information was received by the
Working Group from the Government of Cameroon concerning these cases. The
Working Group is, therefore, unable to report on the fate or whereabouts of
the disappeared persons.
E/CN. 4/1996/38
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Chad
114. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Chad.
115. The majority of the six cases of disappearance reported to the
Working Group occurred in 1991 and one case in 1983. The latter was submitted
by a relative of the victim and concerned a member of the Democratic National
Union who was reportedly taken prisoner in July 1983 in the context of clashes
between government troops and opposition forces which took place at
Faya-Largeau. The other cases concerned members of the Hadjerai ethnic group
who had reportedly been arrested on 13 October 1991 by the Chadian security
forces. Their detention is said to have taken place following an announcement
by the authorities that an attempt by a section of the Chadian armed forces to
overthrow President Idriss Deby had been thwarted. Soldiers loyal to the
Government are said to have killed and arrested many civilians, solely because
they came from the Hadjerai ethnic group.
116. During the period under review, no new information was received from the
Government of Chad with regard to the outstanding cases. The Working Group
is, therefore, unable to report on the fate and whereabouts of the disappeared
persons.
Chile
117. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Chile. During
this period, the Working Group considered clarified 21 cases which
concerned 20 persons detained by the armed forces and the carabineros in
September and October 1973 and one person detained by the Military
Intelligence Service in June 1976. The remains of 17 persons were found and
identified as a result of tests carried out by the Forensic Medicine
Department of Santiago, and were returned to their relatives. In the four
other cases, the death of the missing persons was established through judicial
proceedings in which a comparison was made between the victim's fingerprints
noted as unidentified in the autopsy records on file in the Forensic Medicine
Department and those on the civil register file. During the same period, the
Working Group retransmitted 17 cases, updated with new information from the
source.
118. The vast majority of the 912 reported cases of disappearance in Chile
occurred between 1973 and 1976 under the military Government. They concerned
political opponents of the military dictatorship, from different social
strata, most of them activists in the Chilean leftist parties. Disappearances
were carried out by members of the army, the air force, the carabineros and
persons acting with the acquiescence of the authorities.
119. The National Truth and Reconciliation Commission (Comisiôn Nacional de
Verdad y Reconciliaciôn) , set up by the civilian Government in April 1990 to
investigate serious human rights violations during the period of military
rule, concluded that 957 persons had disappeared following their detention by
the army or security forces. Since the restoration of civilian Government,
some civilian court judges have endeavoured to pursue investigations into
E/cN. 4/1996/38
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disappearances to clarify the facts and establish responsibility. Forensic
identification of the remains recovered from mass graves by the Forensic
Medicine Department of Santiago are continuing, in spite of the 1978 Amnesty
Law which impedes the prosecution of those responsible for the extrajudicial
executions and disappearances.
120. During the period under review, information of a general nature
concerning the obstacles found in the application of the Declaration on the
Protection of All Persons from Enforced Disappearance at the national level
was received from non-governmental organizations. With reference to
article 13 of the Declaration, it has been stated that, despite the efforts
which have been made since the restoration of democracy, there are still
serious difficulties in investigating and in punishing those responsible for
the hundreds of enforced disappearances that took place during the period of
military Government. Although it has been possible to determine the fate of a
number of those who disappeared, it is stated that only one case has reached
the stage of final judgement within the judicial system, which is evidence of
the serious difficulties still being experienced in securing the trial of
those responsible.
121. With regard to article 18 of the Declaration, it has been stated that
both the Decree-Law on Amnesty of 1978, which is currently in force, and the
power to exert pressure still held by the security forces, as a result of the
restrictions imposed by the military regime, are affecting the judicial system
and are preventing the progress made in establishing the truth from leading to
any possibility of punishing those responsible for enforced disappearances.
In this connection, it is reported that, on 27 December 1994, the Supreme
Court of Justice applied the 1978 Decree-Law on Amnesty in a trial in which
the enforced disappearance of 70 persons was being investigated.
122. With reference to article 16, paragraph 2, of the Declaration, it has
been reported that the Supreme Court is continuing to decide conflicts of
competence in favour of the military courts when those reported to be
responsible for enforced disappearances are members of the armed forces, the
carabineros or the police. The military courts are said to be rapidly
ordering the filing of cases under the 1978 Decree-Law on Amnesty, without
carrying out the necessary investigation of the evidence.
123. It is reported that the most important step taken in recent months to
establish criminal responsibility was the conviction of General Manuel
Contreras Sepülveda (retired) and Brigadier Pedro Espinoza Bravo, in the
assassination of Orlando Letelier, former Minister of Foreign Affairs,
assassinated in Washington in 1976. The outcome of this case is said to have
reinforced the autonomy and independence of the judiciary.
124. With reference to article 19 of the Declaration, it is reported that the
National Agency for Compensation and Reconciliation, established in
February 1992, has continued to grant financial compensation to the relatives
of victims of enforced disappearances mentioned in the report of the National
Truth and Reconciliation Commission of 1991 (the Rettig Report) . This
compensation consists primarily in the granting of monthly pensions,
accommodation in low-cost housing and scholarships, authorized under the
1992 Compensation Law.
E/CN. 4/1996/38
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125. During the period under review, the Government of Chile sent replies
on seven individual cases of disappearance, in which it informed the
Working Group that the death of these persons had been judicially established
through legal testimonies, even though their remains could not be found. In
four cases, the Government reported that the investigation carried out by the
National Agency for Compensation and Reconciliation concluded that the fate
suffered by these persons had been one of extrajudicial executions by forces
belonging to the carabineros de Chile, and by civilians. Their corpses were
seen floating in a river. Investigations carried out by judges in the courts
of first instance had been dismissed in 1981 by military courts in pursuance
of Legislative Decree No. 1291 concerning amnesty. With regard to the three
other cases, the Government reported that, despite not having been able to
establish the final whereabouts of the remains of these persons, the
investigations carried out by the National Agency for Compensation and
Reconciliation concluded that they were victims of extrajudicial executions
carried out by military personnel and carabineros. These persons were taken
to a bridge, shot and their bodies thrown into a river. A number of witnesses
stated that they had seen the bodies floating. Lastly, the Government
reported that there is an ongoing judicial investigation into the personal
responsibility of the servicemen concerned for the offences committed.
126. The Government of Chile also sent a reply to the allegations received by
the Working Group and submitted to it on the obstacles encountered in the
application of the Declaration on the Protection of All Persons from Enforced
Disappearance at the national level. This information supplemented the
background material in the Working Group's possession on the work and powers
of the National Agency for Compensation and Reconciliation. The Government
reported that the National Agency, under its charter, is required to promote
and contribute to actions designed to determine the whereabouts and the
circumstances surrounding the disappearance of missing detainees and of
persons whose remains have not been located despite the existence of legal
recognition of their death. Given its legal terms of reference, it has had to
distinguish between presumption and proof as regards the fate of the victims
and the circumstances surrounding their disappearance, on the basis of the
final whereabouts of their remains. Numerous investigations carried out by
the National Agency have led it to the conclusion that, apart from the
circumstances of the victims' fate and the causes of their disappearance, it
will not always be possible to determine the final whereabouts of their
remains. Factors such as the passage of time, the occurrence of irreversible
physical events and, in most cases, the total lack of background information
justifying further investigation, constitute the main obstacles to the
National Agency's tasks of finding the remains of victims so that they can be
recovered by their families.
127. The National Agency is required to bear in mind at all times, while
carrying out its duties, that the right of family members to locate the
remains of persons reported missing is an inalienable right. Consequently,
irrespective of the declared opinion of the Agency or any other
State-controlled body that it is reasonable to consider that the circumstances
of the fate suffered by a victim have been elucidated, the right of the
families to find their remains, and hence the obligation of the State - and of
the Agency - to promote efforts conducive to that aim, is not precluded,
exhausted or forfeited. Every case has to be resolved separately, paying
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attention to its specific characteristics and in the light of the background
information compiled by independent research. According to the National
Agency, it is not possible at present to lay down strict or pre-established
parameters or criteria on the subject. The Agency takes a decision on each
case only after its investigations have been completed, conscientiously giving
due weight to the whole range of material assembled before making a
pronouncement.
128. The Government further reported that the National Agency is required by
law to maintain absolute reserve regarding its investigations so long as they
have not been definitively completed. For this reason, it is not always able
to supply to the relatives comprehensive information about the subject of the
investigation, the facts ascertained and the final conclusions drawn in each
situation once all the possibilities of investigation have been exhausted.
Lastly, in the Agency's opinion, the recording of the death of a victim in the
relevant register is not the only factor to be considered in reaching a
decision on a case. Indeed, its conclusions are adopted on the basis of all
the background material, clues and presumptions it has succeeded in putting
together in the course of its investigations. More than 68 cases in the
Agency's archives continue to be classified as special investigations into
unresolved cases of missing detainees, even though - according to the relevant
public register - they are regarded as deceased by virtue of court
declarations of presumed death. In only 13 of these cases has it to date been
concluded that the circumstances of the fate of the victims or the final
whereabouts of their remains have been ascertained.
129. At its forty-seventh session, the Working Group met with representatives
of the Government of Chile and engaged in an exchange of views with regard to
the best way to deal with the very old cases which remain on its books.
Observations
130. The Group appreciates the cooperation of the Government of Chile and is
supporting and following with interest the efforts being made by the National
Agency for Compensation and Reconciliation to determine the whereabouts of
disappeared persons, and in particular to compensate the family members of
victims in accordance with article 19 of the Declaration on the Protection of
All Persons from Enforced Disappearance.
131. Nevertheless, the Group notes with concern that certain interpretations
of the 1978 Amnesty Law by the judicial system are seriously undermining the
Chilean State's ability to comply with its international obligation to conduct
investigations “thoroughly and impartially” (art. 13) “for as long as the fate
of the victim of enforced disappearance remains unclarified” (art. 13,
para. 6) . The Group is similarly concerned by the continuing tendency to
refer to the military courts cases involving the criminal investigation of
persons alleged to have perpetrated an act of enforced disappearance, since
such action is at variance with the provisions of article 16, paragraph 2, of
the Declaration, which specifically states that acts of this nature shall not
be tried by military courts.
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China
132. During the period under review, the Working Group transmitted to the
Government of China three newly reported cases of disappearance, all of
which allegedly occurred in 1995. All three cases were transmitted under
the urgent action procedure. During the same period, the Working Group
clarified 21 cases; 19 on the basis of information previously submitted by the
Government, and 2 in which the source had established the whereabouts of the
persons concerned.
133. Most of the 56 cases of disappearance reported to have occurred in China
took place between 1988 and 1990. The majority of the persons alleged to have
disappeared were Tibetans engaged in activities in favour of Tibetan
independence. Reportedly, some of them disappeared after being arrested for
writing or singing national poems or songs. Nineteen of these cases concerned
a group of Tibetan monks who had reportedly been arrested in Nepal,
interrogated by Chinese officials while in detention and, allegedly, turned
over to the Chinese authorities at the Jatopani border. Other victims were
human rights activists involved in pro-democracy activities. Three of the
reported cases concerned persons who disappeared after the incidents in
Beijing in 1989.
134. The newly reported cases of disappearance are said to have occurred in
Tibet, and concern a six-year-old boy who was allegedly recognized as the
reincarnation of the tenth Panchen Lama by the Dalai Lama on 4 May 1995, and
the boy's parents, who are alleged to have been taken from their village by
members of the police.
135. During the period under review, the Government of China provided
information on six cases of disappearance, three of which had been clarified
at the forty-fourth session of the Working Group; the other three concern the
allegations of the disappearance of the boy who was reportedly recognized as
the reincarnated Panchen Lama and his parents. In connection with the latter
three cases, the Government submitted a lengthy reply in which it stated that
“there has never been any case of ... kidnapping and disappearance of the
family of the reincarnated child” and that the disappearance is a “mere
fabrication by the Dalai Lama group” for political purposes. The process for
selecting a reincarnated child was described. Since 1989, when the
Panchen Lama passed away, the Government of China had been engaged in a search
for the reincarnated child. Just as the selection process had entered its
final stage, the Dalai Lama intervened by arbitrarily announcing his own
choice. The Government stated that this was done for political purposes.
Colombia
136. During the period under review, the Working Group transmitted 33 newly
reported cases to the Government of Colombia, 16 of which occurred in 1995.
Of these newly reported cases, 20 were transmitted under the urgent action
procedure. During the same period the Group clarified two cases in which it
was reported that the subject's body had been found.
137. In accordance with Commission on Human Rights resolution 1995/75, the
Working Group sent four “prompt intervention” cables to the Government of
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Colombia on behalf of persons who had allegedly been subjected to acts of
intimidation or harassment. These include members of the Association of
Relatives of Disappeared Detainees, as well as relatives and witnesses to the
arrest of persons subsequently disappeared who have publicly denounced the
cases and given testimony before the judicial authorities.
138. The majority of the 949 reported cases of disappearance in Colombia have
occurred since 1981, especially in BogotI and regions where the level of
violence is highest. Among them there are persons belonging to civic or human
rights groups that had publicly denounced abuses by members of the security
forces or paramilitary groups. The number of cases in the Working Group's
files is much lower than the figures handled by the national non-governmental
organizations. This is due, to a large extent, to the fact that in many cases
the persons are found dead a few days after the disappearance. With regard to
other cases, it has not been possible for the relatives or acquaintances of
the missing persons to establish a link between the disappearance and the
activities of government forces or groups associated with them.
139. The cases transmitted this year occurred mainly in the departments of
Jthtioquia (9), Caldas (5), César (5), Norte de Santander (4), Valle (3),
Santander (2), Atlmntico (1), Bolivar (1), Cauca (1), Côrdova (1),
Cundinamarca (1) . The forces alleged to be responsible were the Army (15)
the police (6) , paramilitary groups (6) , men in plain clothes believed to be
linked to security forces (4) , the DHS (2)
140. During the period under review, a number of non-governmental
organizations transmitted information of a general nature concerning the
obstacles found in the application at the national level of the Declaration on
the Protection of All Persons from Enforced Disappearance. With respect to
articles 14 and 16 of the Declaration, it was stated that the continuous
assignment of cases of human rights violations to the military jurisdiction
facilitates impunity and that the Supreme Judicature Council, the body
empowered to settle conflicts of jurisdiction between civil and military
tribunals, usually decides in favour of the latter. It was also asserted
that, in violation of the provisions of article 16.1 of the Declaration,
officials accused of committing human rights violations are not suspended from
their duties during the proceedings against them.
141. The armed forces continue to exercise judicial police functions under
decree No. 1810 of 1992 and, therefore, to carry out detentions and raids.
The decree is alleged to have facilitated acts of enforced disappearance and
to have been used to hinder or divert investigations, becoming a source of
impunity.
142. With respect to articles S and 19 of the Declaration, it was asserted
that financial compensation may be obtained only in cases where there is a
decision of the Human Rights Committee or of the Inter-American Commission on
Human Rights, followed by a conciliation procedure before an inter-ministerial
committee. If no agreement is reached, victims have no possible way to
express their disagreement with the offer made by the Government. It was also
reported that a recent bill laid before Congress would limit reparation to the
granting of financial compensation.
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143. It was asserted that, in violation of the provisions of article 13.4 of
the Declaration, a campaign was recently launched to discredit the work of
human rights non-governmental organizations, it being claimed that their work
promotes the objectives of guerrilla groups. That has forced the Association
of Relatives of Disappeared Detainees (ASFADDES) to close its offices in UrabI
and Ocafla. The atmosphere of hostility and intimidation has reportedly
endangered the non-governmental organizations' work. It was also alleged that
soldiers and police officers accused of human rights violations by members of
non-governmental organizations generally responded by accusing the latter - in
criminal proceedings - of aiding and abetting the commission of terrorist
acts.
144. Regarding article 10.1 of the Declaration, it was mentioned that the
Government recently issued decree No. 221 of 31 January 1995, article 2 of
which permits detained civilians to be transferred to military facilities in
prison emergencies. Military facilities were alleged, de facto, to be beyond
all judicial control. This provision, therefore, allegedly facilitates acts
of enforced disappearance.
145. It was stated that article 38 (f) of law No. 137 of 1994 authorizes the
detention on remand, without a warrant from the judicial authority, of persons
suspected of participating in or planning crimes, in circumstances of extreme
urgency. It was asserted that this provision weakens individual guarantees
against deprivation of liberty and may facilitate the enforced disappearance
of persons.
146. It was stated that the remedy of habeas corpus has been drastically
weakened by law No. 15 of 5 October 1992, article 2 of which provides that
such remedy is available only within the relevant judicial proceedings. This,
it is maintained, has prevented its being used outside judicial proceedings or
in cases of illegal or arbitrary deprivation of liberty by a non-judicial
authority. This dilution of the remedy is said to explain why it was little
used in 1994 and 1995.
147. Particular concern was expressed about the fact that General Alvaro
Velandia Hurtado, who had been discharged on 6 July 1995 by the Office of the
Attorney-General because of his involvement in the enforced disappearance and
homicide of Nydia Erika Bautista de Arellana, was decorated on 4 August 1995
by the Minister of Defence with the Meritorious Service Order. Subsequently,
the Government informed the Working Group that, following a presidential
decree, General Velandia had indeed been discharged.
148. During the period under review, representatives of the Government of
Colombia meet with the Working Group at its forty-fifth session, during which
it assured the Group of its full cooperation and reiterated its invitation to
visit the country. The Government also transmitted information about the
legal steps taken in connection with approximately 100 outstanding cases in
order to find those responsible for the disappearance. In none of them,
however, had the investigations yet come to final conclusions. It also
submitted replies on a number of other individual cases in which it reported
that in two cases the subject's body had been found; in one case the person
concerned was in detention and two cases were under investigation. In
addition, the Government informed the Working Group of a bill establishing
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mechanisms for compensation to victims of human rights violations in cases
where a decision in this regard has been adopted by international human rights
bodies. It also informed it about the establishment of a Commission which
will study the follow-up to the recommendations included in the 1994 report on
the visit to Colombia by the Special Rapporteur on extrajudicial, summary or
arbitrary executions and the Special Rapporteur on torture.
149. The Government of Colombia also addressed an invitation to the
Working Group to visit the country. The Working Group agreed to undertake
this visit in the course of 1996.
Observations
150. The Group expresses its appreciation for the cooperation of the
Government of Colombia during the period under review. However, the Group is
concerned by the nature of developments in Colombia throughout 1995, and in
particular by the fact that the evolving situation reflects a large number of
cases of disappearance. The Group understands the difficulties being
encountered in the prevailing context of violence and recognizes the progress
made by the Colombian State, noting in particular the activities of the
Ombudsman. Nevertheless, what is happening serves to underline the urgency of
adopting more appropriate policies to enable the Colombian State to fulfil its
obligation to “take effective legislative, administrative, judicial or other
measures to prevent and terminate acts of enforced disappearance” in
accordance with article 3 of the Declaration.
151. The Group draws attention to the need for full compliance with the
obligation that persons alleged to have perpetrated any such acts should be
tried by the ordinary courts and not military courts, in accordance with
article 16, paragraph 2, of the Declaration. Similarly, it emphasizes the
need to ensure full and effective recourse to habeas corpus so as to give
effect to the international obligation to guarantee “a prompt and effective
judicial remedy” (art. 9) as a means of preventing disappearances and
determining the whereabouts of persons deprived of their liberty. Lastly, it
urges the Colombian authorities to do everything in their power to ensure the
safety of family members and witnesses in accordance with article 13,
paragraph 3, of the Declaration.
Cyprus
152. As in the past, the Working Group continued to remain available to assist
the Committee on Missing Persons in Cyprus (CMP) . The Working Group noted
that in 1995 the Committee, whose activities are based mainly on the testimony
of witnesses and investigations in the field, held only two sessions of
meetings at the end of the year, in November and December. Prior to the full
resuming of the CMP activities, bilateral meetings between the Third Member
and his Assistants, with both sides, took place on a regular basis to bridge
existing differences.
153. The Working Group was informed that, throughout the year, the
Secretary-General of the United Nations had followed carefully the activities
of the CMP. In his reports, he conveyed to the Security Council, on several
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occasions, his concern about the absence of progress in the work of the CMP,
and that the continued support of the United Nations should depend on the
cooperation of both sides in reversing this situation.
154. The Working Group welcomed the positive answer made by both sides to the
letter of the Secretary-General of the United Nations addressed to the two
leaders on 17 May 1995 urging them to finalize the submission of all the cases
of missing persons as well as to accept his proposal of criteria for
concluding the investigations carried out by the CMP.
155. After having received all the cases, the CMP had the initial task of
classifying them in broad categories, including cases with known witnesses and
those with none. At this stage, the only meaningful basis for assessing
whether the CMP is making progress is the extent to which the Committee will
complete its work on the cases at a reasonable speed.
156. The Secretary-General has asked the Third Member to submit, by the end of
December 1995, a full report on the situation at that time; on the basis of
this report, the Secretary-General will consider the question of continued
support by the United Nations for the Committee.
Dominican Republic
157. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of the Dominican Republic.
iss. of the two outstanding cases, one concerns a person who was arrested in
June 1984 in Santo Domingo and who subsequently disappeared. The other
concerns a university lecturer, who was also a journalist and political
activist, and who was reportedly detained in May 1994 by members of the army
and subsequently taken to a military base.
159. During 1995, the Government of the Dominican Republic submitted a reply
concerning the case of the disappearance of the university lecturer, in which
it was reported that all the necessary local investigations were being carried
out in order to clear up this case. “By express order of the President of the
Republic, the relatives of the missing person had been given every facility to
visit police and military premises and hospitals. The Dominican Government
was making serious efforts to find the missing person and the people of the
country were offering their cooperation to ensure that this case is
cleared up”
Ecuador
160. During the period under review, the Working Group transmitted three newly
reported cases of disappearance to the Government of Ecuador, all of which
reportedly occurred in 1995 and were sent under the urgent action procedure.
During the same period, it clarified four cases, in which two persons were
presumed dead and two others were found in detention. The Working Group also
retransmitted to the Government one case, updated with new information from
the source.
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161. During the same period, in accordance with Commission on Human Rights
resolution 1995/75, the Working Group sent a “prompt intervention” cable to
the Government requesting protection for members of human rights organizations
and relatives of missing persons who had allegedly been subjected to acts of
intimidation and harassment, and for a former National Police officer whose
testimony had been of particular importance in the judicial investigation of
the disappearance of two children, and who was alleged to have been subjected
to intimidation and to have received threats from members of the National
Police.
162. The majority of the 20 reported cases of disappearance occurred
between 1985 and 1992 and concerned persons who were reportedly arrested by
members of the Criminal Investigation Service of the National Police. The
disappearances occurred in Quito, Guayaquil and Esmeraldas. In three cases
the victims were children.
163. Two of the cases which concerned children were clarified this year when
the source reported that they were presumed dead. The source further informed
the Working Group that in November 1994, the Ecuadorian Supreme Court of
Justice of Ecuador sentenced seven officers of the National Police, including
a retired director and two active duty generals, to prison terms ranging
between 2 and 16 years, for being implicated in the abduction, torture and
murder of these children. The Supreme Court also ordered three officials to
be put on trial for having hindered the investigation into these cases. In
accordance with its methods of work, the Working Group transmitted these cases
to the Special Rapporteur on extrajudicial, summary or arbitrary executions.
164. The three newly reported cases concerned Peruvian citizens who were
reportedly detained in January and February 1995 in the cities of Huaquillas,
Loja and Otavalo.
165. During the period under review, the Government of Ecuador submitted
information on three individual cases in which it reported that in two of
them, the persons were found in detention and were being held by the Ministry
of National Defence on charges of spying; these cases were subsequently
clarified. In the third case, the person was reported to have left the
country; this case is still pending.
Egypt
166. During the period under review, the Working Group transmitted seven newly
reported cases of disappearance to the Government of Egypt, two of which
reportedly occurred in 1992, one in 1993 and four in 1994.
167. The majority of the eight previously reported cases of disappearance in
Egypt occurred between 1988 and 1993. Amongst the victims were an alleged
supporter of the Jihad organization and three citizens of the Libyan Arab
Jamahiriya. The renewal of the state of emergency during this period, which
reportedly gave free rein to the security forces without supervision or
accountability, is said to have been an aggravating factor in the
disappearances.
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168. The newly reported cases concern four students, one civil servant and two
others whose professions are not known. In five cases the security forces are
alleged to be responsible for the disappearance, and in two cases
responsibility is imputed to the police. Five of the persons concerned
reportedly disappeared in the Sohag Governate, one in Cairo and one in the
Daquouliya Governate.
169. During the period under review, no information was received by the
Working Group from the Government of Egypt concerning the outstanding cases.
The Working Group is, therefore, unable to report on the fate and whereabouts
of the persons concerned.
El Salvador
170. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of El Salvador.
171. The majority of the 2,638 reported cases occurred between 1980 and 1983,
in the context of the armed conflict between the Government of El Salvador and
the Farabundo Marti National Liberation Front (FMLN) . Many victims
disappeared following arrest by uniformed soldiers, uniformed police or
abduction in death-squad-style operations carried out by armed men in civilian
clothing, reportedly linked to the army or to the security forces. Abductions
by armed men in civilian clothing were, in some cases, subsequently recognized
as detentions, which raised allegations of links with the security forces.
172. From 12 to 13 September 1995, one member of the Working Group,
Mr. Diego Garcia-Saymn, carried out a visit to El Salvador in order to
undertake direct contacts with government authorities, the Ombudsperson,
non-governmental organizations and members of the United Nations Observer
Mission in El Salvador (ONUSAL), with regard to the process of clarification
of the great number of outstanding cases.
173. During the period under review, information of a general nature
concerning the obstacles to the application of the Declaration on the
Protection of All Persons from Enforced Disappearance at the national level
was submitted to the Working Group. Concern was expressed that several
recommendations of the Truth Commission, mainly those which referred to the
compensation of the relatives of the victims of human rights violations, have
not yet been implemented. Concern was further expressed about the large
number of cases pending before the Working Group which remain unclarified.
174. It was pointed out that a request to the Legislative Assembly, submitted
in 1990, to establish a commission of inquiry into enforced disappearance in
order to establish the truth regarding the events and responsibility for them,
remains unanswered. Neither the National Counsel for the Defence of Human
Rights nor any government agency has been entrusted to investigate the
reported cases of enforced disappearance and to promote or monitor the
implementation of the Declaration. It was also reported that the 1993 Amnesty
Decree-Law has been applied in such a way that it has allowed those
responsible for enforced disappearances to go unpunished.
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175. The Working Group continued to receive allegations concerning the
deficiencies of the criminal investigation system and the observance of the
due process of law. Notwithstanding the express recommendations made by the
Commission on Human Rights, the Human Rights Division of ONUSAL and the Truth
Commission, the judicial system remains inefficient.
176. The failure to comply with some of the recommendations of the Joint Group
for the Investigation of Illegal Armed Groups, set up pursuant to an
initiative by the Secretary-General with the support of the Security Council,
was also reported. The Joint Group recommended, among other things, special
judges and prosecutors to deal with organized crime and illegal armed groups.
The resurgence of such groups is said to be a product of non-compliance with
some of these recommendations.
177. There have also been complaints concerning the difficulty of access by
the Salvadoran population to the remedies of habeas corpus and amparo ,
fundamental instruments that guarantee the protection of human rights.
178. Lastly, some non-governmental organizations expressed concern at the
failure of the Government of El Salvador to disseminate and promote the
Declaration in accordance with paragraph 2 of General Assembly
resolution 47/133 of 18 December 1992.
179. In 1995, no new information was received from the Government of
El Salvador with regard to the outstanding cases. The Group is, therefore,
still unable to report on the fate or whereabouts of the disappeared persons.
Observations
180. The Group notes that the matters covered by its mandate are evolving in a
positive manner. It is encouraging to note that not a single case of enforced
disappearance has been recorded since 1992 and that the human rights situation
in general has tended to improve. However, it is concerned by the activities
of organized crime and their possible implications for the enjoyment of human
rights. Effective action to curb such activities, which could create a
climate conducive to the perpetration of human rights violations, calls for
the investigation of politically motivated illegal armed groups, in particular
those concerning judges and special procedures.
181. The Group is also concerned by the fact that little has been done to
clarify outstanding cases in accordance with the Salvadoran State's
international obligation to have complaints investigated “thoroughly and
impartially” (art. 13) “for as long as the fate of the victim of enforced
disappearance remains unclarified” (art. 13, para. 6) . The Group expresses
the hope that suitable coordination between the Government of El Salvador, the
government procurator's office for the protection of human rights and family
members of disappeared persons will make progress in this direction possible
as well as in connection with related compensation matters in accordance with
article 19 of the Declaration.
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Equatorial Guinea
182. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Equatorial Guinea.
183. The three reported cases of disappearance concern members of political
opposition parties who were reportedly arrested in Malabo on 9 and
10 August 1993. The police authorities, however, have reportedly refused to
disclose any information on their whereabouts.
184. Although several reminders have been sent, no information has been
received by the Working Group from the Government of Equatorial Guinea on the
three outstanding cases. The Working Group is, therefore, still unable to
report on the fate and whereabouts of the disappeared persons.
Ethiopia
185. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Ethiopia. During this
period, the Working Group considered clarified one case which occurred in 1994
and in which the Government reported that the person concerned had been
released from detention. The Working Group also retransmitted one case,
updated with new information from the source.
186. The majority of the 101 cases of disappearance reported to the Working
Group occurred between 1991 and 1994 under the Transitional Government, and
concerned members of the Oromo ethnic group suspected of participation in the
Oromo Liberation Front who were arrested in Addis Ababa or disappeared from
the military detention camp 1-lurso in western Ethiopia. Other cases concerned
members of the Ogaden National Liberation Front (a political party) who
disappeared in Region Five in eastern Ethiopia, also known as the Ogaden, an
area reportedly inhabited by ethnic Somalis and in which there were reports of
fighting by elements of the Ogaden National Liberation Front. Some 30 other
cases occurred between 1974 and 1992 after the military Government took power,
and concerned mainly, although not exclusively, high-ranking officials of
Emperor Haile Selassie's Government and members of the Oromo ethnic group, in
particular those believed to be involved with the Oromo Liberation Front, or
persons accused of involvement with opposition political groups, including the
Ethiopian Socialist Movement.
187. During the period under review, information of a general nature was
received from non-governmental organizations. Serious concern was expressed
to the Group about obstacles reportedly imposed by the Transitional Government
of Ethiopia to the monitoring of human rights violations, including
disappearances, in the country. It was reported that some local human rights
organizations, especially those actively involved in receiving complaints,
documenting abuses, and publishing their findings, have been denied formal
registration, and hence their ability to operate has been restricted. It is
further reported that when the denial to renew registrations was contested in
court, members of the organization concerned were subjected to reprisals by
the Government.
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188. During the period under review, the Government of Ethiopia provided
information on 55 individual cases of disappearance, in which it reported that
in 39 of the cases “it is confirmed” that the subjects were not arrested in
any part of the country and that “no evidence could be found indicating that”
they “might have been disappeared”. With regard to the remaining 16 cases,
the Government reported that the subjects were not imprisoned at the Hurso
military camp and that no evidence of their alleged disappearance can be
found.
189. The Government also stated “that it had carried out an extensive inquiry
in order to identify and clarify each and every case. However, due to the
very complex nature of the accusations and especially the lack of ample
evidence, no clear information could be obtained on the majority of
accusations”. It further stated, with regard to these cases, that a
“deliberate and systematic system of misinformation” had been used for
political purposes in order to discredit the Government. It expressed its
disappointment that the submitting organization had made little effort to
investigate the validity of its sources before transmitting the cases to the
Working Group and said that the accusations were biased and partial.
190. The Government also informed the Working Group that the Constituent
Assembly had adopted a new constitution which guaranteed fundamental human
democratic rights, established the rule of law and provided for the
establishment of a Human Rights Commission and the institution of Ombudsman.
Observations
191. The Working Group appreciates the cooperation received from the
Government of Ethiopia. Nevertheless, it remains concerned that the efforts
of the Government so far have not resulted in the clarification of the
whereabouts of the persons reported as disappeared. The Working Group wishes
to remind the Government of Ethiopia of its obligations under the Declaration
to thoroughly investigate all allegations of disappearances and to bring the
perpetrators to justice.
192. The Working Group further express its concern at the reported cases of
reprisals by the Government against local human rights organizations and, in
this connection, refers to article 13.3 of the Declaration which states that
“steps shall be taken to ensure that all involved in the investigation,
including the complainant, counsel, witnesses and those conducting the
investigations, are protected against ill-treatment, intimidation or
reprisal”.
Greece
193. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Greece.
194. The two outstanding cases were transmitted to the Government in 1993 and
concern Albanian cousins who were reportedly taken by the police in Zagora the
same year. The Government informed the Working Group in 1993 that the persons
in question had never been arrested by the police, but that they were
continuing investigations.
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195. During the period under review, no new information was received from the
Government of Greece with regard to these two cases. The Working Group is,
therefore, still unable to report on the fate or whereabouts of the
disappeared persons.
Guatemala
196. During the period under review, the Working Group transmitted to the
Government of Guatemala, under the urgent action procedure, seven newly
reported cases of disappearance, three of which occurred in 1994 and four in
1995. During the same period, the Working Group considered clarified six
cases. It also retransmitted to the Government one case, updated with new
information from the source.
197. In accordance with Commission on Human Rights resolution 1995/75, the
Working Group sent a “prompt intervention” cable to the Government of
Guatemala requesting protection for the prosecutor appointed to investigate
the case of the disappearance of Efrain Bamaca, a leader of the armed
opposition, for Mr. Bamaca's wife and for a former soldier who testified that
he had seen Bamaca in custody at a military base, after the army reported his
death in combat. Both the prosecutor and the former soldier had allegedly
received continuing death threats. Mr. Bamaca's wife was reportedly
confronted by approximately 40 people sent to the proposed exhumation site to
intimidate her.
198. Concerned about the number of disappearances in Guatemala, the Working
Group undertook a visit to that country in 1987. The observations included in
the 1987 report on that mission (E/CN.4/1988/19/Add.1) referred in particular
to the efforts that should be made to improve the functioning of the
habeas corpus procedures, to protect the life of witnesses, as well as of
persons and organizations reporting cases, and to adopt convincing measures to
prevent and clarify disappearances.
199. It should be noted that, although the number of reported cases has
declined notably since 1991, disappearances have become more selective in
recent years and have mainly affected trade unionists, student leaders,
journalists and human rights defenders.
200. The majority of the 3,151 reported cases of disappearance in Guatemala
occurred between 1979 and 1986, in the context of the Government's fight
against the Unidad Revolucionaria Nacional Guatemalteca (tJRNG) . Their
characteristics have been described in detail in the Group's previous reports.
201. The seven newly reported cases concern a leader of the indigenous rights
group Council of Ethnic Communities Runujel Junam who was reportedly arrested
in October 1994 in Guatemala City by members of the National Police; two
members of the National Movement of Settlers (MONAP) who were reportedly
detained in January 1995 by members of the Military Intelligence Service (G-2)
in Guatemala City; two persons detained in November 1994 by members of the
army in Jutiapa City and in the Municipality of San Luis, respectively; a
pastor in the Presbyterian Church and member of the human rights organization
Defensoria Maya reportedly detained in June 1995 in the Department of
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Sacatepequez by members of the army, and a 22-month-old baby, nephew of the
Guatemalan Nobel Peace Prize Laureate Rigoberta Menchü Tum, abducted in
November 1995 in Guatemala City.
202. Five of these cases were subsequently considered clarified by the Working
Group. The corpse of the pastor in the Presbyterian Church was found with
signs of torture. The two members of the MONAP were found alive, and the
person who disappeared in Jutiapa City was found in detention in the Military
Zone No.10 headquarters in Jutiapa with signs of having been subjected to
torture. The first and the fourth cases were subsequently transmitted by the
Working Group to the Special Rapporteur on extrajudicial, summary or arbitrary
executions and on the question of torture, respectively. With regard to the
case of the nephew of Rigoberta Menchü, the child reappeared alive. One other
case, which occurred in 1992, was also clarified when the source reported that
the person concerned was currently free and living in the United States.
203. During the period under review, information of a general nature
concerning obstacles to the application of the Declaration on the Protection
of All Persons from Enforced Disappearance was received from non-governmental
organizations. The phenomenon of impunity was considered as the most serious
obstacle to the enjoyment of human rights in Guatemala. Several
non-governmental organizations expressed concern that the majority of those
responsible for violations of human rights have not been identified,
prosecuted and punished by the State. The defective functioning of the
administration of justice, of the Public Prosecutor's Office and of the
security forces responsible for preventing and punishing crime was pointed
out. Attention was drawn to the professional and technical shortcomings with
regard to the conduct of criminal investigations. It was noted that the
system for the administration of justice is simply not working. Some criminal
court judges who have shown a willingness to investigate complex cases are
said to have been transferred. In addition, the Public Prosecutor's Office
reportedly does not have a policy governing criminal investigations, and there
is said to be a lack of coordination between the Public Prosecutor's Office
and the National Police.
204. Concern was expressed at the increase in political and social violence
and the ineffectiveness of the State institutions responsible for
investigating and punishing human rights violations, including enforced
disappearances. Grave concern was also expressed about the many unsolved
cases of enforced disappearance. It was reported that the work of the courts
investigating cases of disappearance suffers from numerous flaws, such as
delays in proceedings, failure to notify in writing the military authorities
accused by the plaintiffs and failure to appear at the places indicated in the
summons. There have been substantive judicial proceedings in only a few
cases. In most of the cases, action and inquiries which could and should have
been undertaken in a timely manner were not. The court's response reportedly
continues to be excessively slow and is said to be hampered both by outside
pressures on the Public Prosecutor's Office and the judiciary, and by the
inherent failings of these bodies.
205. It was further reported that the competent authorities often do not
conduct investigations, even when they know of the perpetration of enforced
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disappearances, until a complaint is filed. In cases that are reported, they
only take procedural steps which do not allow the investigation to progress
and the guilty parties to be identified.
206. Complaints have been made about numerous cases of pressure and
intimidation against officials of the judiciary and the Public Prosecutor's
Office. It was alleged that the Government has not taken any steps to resolve
this problem. More than 20 judges have reportedly complained to the Supreme
Court about receiving death threats. It was also said that, since agents of
the State are involved, prosecutors show undue reluctance to undertake an
investigation for fear of possible reprisals. Military authorities have been
denounced in the press for pressure brought against judges, prosecutors and
policemen.
207. It was stated that fear of the army permeates the judicial system,
rendering it dysfunctional in resolving disappearances. It was further
reported that no measure has been adopted in order to compensate and assist
the relatives of victims of enforced disappearance, in contravention of
article 19 of the Declaration.
208. At its forty-sixth session, representatives of the Government of
Guatemala met with the Working Group and it provided information on
39 individual cases of disappearance. Three cases were considered clarified
on the basis of the information provided by the Government in which it stated
that the persons concerned had been released and were living at liberty in
their homes. Five cases, in which the Government reported that three persons
were found dead and two others had been released and were living at liberty at
their homes, will be considered clarified if the source does not contest
information within a period of six months. The information provided on
31 cases was considered by the Working Group insufficient to constitute a
clarification.
209. The Government of Guatemala also informed the Working Group of the action
it had taken to implement the provisions of the Declaration on the Protection
of All Persons from Enforced Disappearance. The Government reported that, on
22 July 1995, Congressional Decree No. 48-95, which contains two amendments to
the Penal Code, entered into force. According to the amendments, anyone who
commits the crime of enforced disappearance shall be sentenced to 25 to
30 years in prison. The death penalty shall be imposed in lieu of the maximum
prison sentence when, because of or as a result of the enforced disappearance,
the victim is seriously or critically injured, experiences permanent mental or
psychological trauma or dies. The crime is considered to continue as long as
the victim has not been released. The Government stated that the reform of
the Penal Code is a part of its commitment against impunity contained in the
Comprehensive Agreement on Human Rights signed with the URNG on 29 March 1994.
210. The Government further stated that notices of presumed disappearances are
piling up as a result of regrettable past actions, many of which occurred
under the cover of the internal armed confrontation that had torn the country
apart for more than three decades. The Government is most interested in
establishing the truth of allegations regarding acts characterized as enforced
or involuntary disappearances and shares the anguish of the relatives. In
order to deal with this problem, it is making the greatest efforts to
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determine the victims' whereabouts through coordinated action by the competent
bodies and will provide the Working Group with the necessary information.
Observations
211. The Group wishes to express its appreciation for the cooperation of the
Government of Guatemala. Although the context of violence and impunity
continues to be of concern to the Group and the international community in
general, it is worth noting that the number of enforced disappearances has
declined. It is also noteworthy that the offence of enforced disappearance
was defined in connection with the reform of the Penal Code in July.
Nevertheless, there is still a need to adopt more effective measures to
prevent and terminate acts of enforced disappearance, in accordance with
article 3 of the Declaration.
212. Impunity is a factor that contributes to enforced disappearances and
violations of human rights in general. Efforts to put an end to such impunity
are an obvious priority in the light of Guatemala's international obligations,
compliance with which requires “a prompt and effective judicial remedy”
(art. 9 of the Declaration) and competent and independent State authorities
that carry out investigations “thoroughly and impartially” (art. 13, para.1),
and for this reason it is vital that “steps shall be taken to ensure that all
involved in the investigation, including the complainant, counsel, witnesses
and those conducting the investigation, are protected against ill-treatment,
intimidation or reprisal” (art. 13, para. 3)
Guinea
213. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Guinea.
214. The majority of the 28 reported cases in Guinea occurred in 1984 and 1985
in the context of a coup d'etat . It may be noted that the Working Group has
received no reports of disappearances occurring in Guinea after 1985.
215. During the period under review, no new information was received from the
Government of Guinea with respect to the outstanding cases. The Working Group
is, therefore, unable to report on the fate and whereabouts of the disappeared
persons.
Haiti
216. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Haiti.
217. The majority of the forty-eight reported cases of disappearance occurred
in three waves during the periods 1981-1985, 1986-1990 and 1991-1993. Most of
the cases which occurred during the first period concerned members or
supporters of the Haitian Christian Democrat Party who were allegedly arrested
by members of the armed forces or by the Tonton Macoutes. The cases that
occurred during the second period concerned persons who were reportedly
arrested by armed men in civilian clothes, members of the Anti-Gang and
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Investigation Service, and by the police. The last wave of cases took place
in the aftermath of the coup d'etat which ousted elected President Aristide.
218. During the period under review, the Government of Haiti informed the
Working Group that it had taken all necessary measures to ensure that
fundamental human rights were respected in Haiti. To that end, a National
Commission on Truth and Justice had been set up and given the task of
elucidating all crimes committed in Haiti during the last three years. In
addition, the Government reported that it had taken a number of practical
steps to ensure the protection of human rights, including, inter alia , the
dismissal of section chiefs guilty of abuses, the discharge from the Haitian
Armed Forces of all military personnel who had committed human rights
violations and the establishment of a new police force, under the supervision
of the Ministry of Justice, with special attention accorded to human rights in
the training of this force. It also reported that a reform of the judiciary
was under way.
Honduras
219. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Honduras. The Working
Group clarified one case in which it was reported that the disappeared
person's remains were found and exhumed. This was the first person to be
identified among those who disappeared in the early 1980s. The Working Group
also retransmitted one case to the Government, updated with new information
from the source.
220. In accordance with Commission on Human Rights resolution 1995/75, the
Working Group sent a “prompt intervention” cable to the Government of Honduras
requesting protection for members of the Office of the National Commissioner
for the Protection of Human Rights, of the Committee of Relatives of
Disappeared Persons in Honduras (COFADEH), of the Human Rights Committee of
Honduras (CODEH), for journalists of the Honduran daily newspaper Tiempo and
for relatives of a retired army major who was killed after having accused a
former high official of the armed forces of acts of corruption. These persons
had allegedly been subjected to acts of intimidation and harassment.
221. The majority of the 196 cases of disappearance reported to the Working
Group occurred between 1981 and 1984, a period during which members of
battalion 3-16 of the armed forces and heavily armed plain-clothes men seized
people perceived as ideological enemies in their homes or on the street, and
took them to clandestine detention centres. The systematic practice of
disappearance ended in 1984, although sporadic cases continued to occur. The
last cases reported to the Working Group occurred in September 1994 in the
department of Colôn.
222. During the period under review, information of a general nature
concerning the obstacles to the application of the Declaration on the
Protection of All Persons from Enforced Disappearance at the national level
was received from non-governmental organizations.
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223. According to the reports received, the practice of enforced or
involuntary disappearance was systematic and general in Honduras during
the 1980s, especially from 1982 to 1984. The reports state that for years
the authorities took no action to clear up these cases and prosecute those
responsible. However, the preliminary report prepared by the National
Commissioner for the Protection of Human Rights, and published
on 29 December 1993, establishes the responsibility of the military and
civilian officials for the clandestine, systematic and organized disappearance
of 184 persons suspected of having links with armed opposition groups during
the 1980s.
224. It has been reported that a major step forward in the struggle to
clarifying past disappearances has been taken in recent months, following the
exhumation in December 1994 of the remains of Nelson Mackay, a lawyer who
disappeared in 1982. The opening of investigations into his case caused a
stir in Honduras because several of those allegedly responsible for ordering
or carrying out disappearances in the 1980s still occupy senior positions in
the military hierarchy and in the civilian administration and can apparently
still evade accountability. As a consequence, little progress has been made
to bring those responsible for Nelson Mackay's disappearance to justice. It
was also reported that those allegedly responsible may be resorting to further
human rights violations to obstruct the process. The Attorney-General's
Office revealed it had sought protection for witnesses involved in the
investigation.
225. It was reported that several members of the Office of the National
Commissioner for the Protection of Human Rights, of COFADEH and of CODEH have
received death threats and have been the object of surveillance by
unidentified men. Leaflets mocking the Human Rights Commissioner and the
relatives of the missing persons have recently appeared in the streets of the
capital, Tegucigalpa. They have also been accused, in leaflets distributed by
the self-proclaimed Democratic Constitutional Civic Committee, of
orchestrating the exhumation of Mackay for financial gain and payment from a
foreign Government. Sectors of the press and journalists of Tiempo have also
received death threats in relation to their coverage of recent moves to
investigate disappearances. The killing in suspicious circumstances of a
retired army major has also been perceived as an attempt to prevent
information regarding military abuses from coming to light. The retired army
major's relatives have also been intimidated so as to stall the investigation
into the killing.
226. The following legal obstacles to the investigations into disappearances
have been pointed out. It has been argued that the disappearances under
investigation are covered by the amnesty laws passed in 1986 and 1991. It was
said, however, that the Honduran amnesty law of 1991 explicitly recognizes the
State's international human rights obligations. Judicial proceedings
initiated in 1984 against certain military officials accused of involvement
in 27 cases of disappearance, which resulted in the acquittal of those
accused, have also been cited as a barrier to reopening investigations against
these officials, in accordance with the principle of law that no one can be
tried twice for the same offence. Crimes committed before 1985 are covered
under Honduran law by a statute of limitations, as a result of which
investigations cannot be initiated after 10 years have elapsed. However,
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article 325 of the Honduran Constitution states that there is no statute of
limitations in cases relating to criminal actions and omissions and for
political motives which result in the death of one or more persons.
227. It was said that the fact that judicial investigations have not yet been
initiated and that official responsibility has not yet been established have
impeded the setting up of mechanisms to grant fair and adequate redress,
including reparation or financial compensation to the relatives of the victims
of enforced disappearances, in accordance with article 19 of the Declaration.
228. Lastly, it was reported that applications for the remedy of habeas corpus
have not been dealt with as promptly as required by the Constitution and
unfailingly have produced no results whatsoever.
229. During the period under review, the Government of Honduras provided
replies to the Working Group's questionnaire, sent last year, on the action
taken to implement the provisions of the Declaration on the Protection of All
Persons from Enforced Disappearance at the national level and on the obstacles
that had been encountered. The Government indicated that the responsibility
of the judiciary in respect for and monitoring of human rights is a constant
and fundamental function with a view to effective administration of justice.
The courts provide a framework for their activities recognizing the guarantees
contained in the Constitution of the Republic, including habeas corpus and
amparo . The current system of administration of justice has also initiated
the practice of conducting exhumations in recently discovered clandestine
graveyards.
230. The Government also indicated that, to challenge the lawfulness of a
detention, a person who has been arrested on the warrant of a competent
authority can attach an application for reconsideration and subsidiary appeal
to the notification of the detention or committal order, once the preliminary
investigations period has ended. His or her legal counsel can also do so. In
all other cases, an illegal detention can be ended by an application for the
remedy of habeas corpus, which can be lodged by anyone, without any need for
formal power of attorney, orally or in writing, using any means of
communication, on working or non-working days and free of cost. However, the
Government stated that an obstacle to its actual effectiveness is that, in
Honduras, no judges are on duty at weekends and on public holidays. The law
also provides that officials who order and agents who execute the concealment
of a detainee or who, in any other way, violate this guarantee shall be guilty
of the offence of illegal detention.
231. The Government further reported that there is not a single official
up-to-date register containing all the information concerning the number of
persons detained throughout the country. However, such information is
available in the police stations, in the criminal courts and in the prisons,
but it is not centralized at the national level. The courts remit the
information to the respective appeal courts, the police stations to the
corresponding police headquarters and the jails and prisons to the
Directorate-General of Prisons.
232. Lastly, the Government reported that the duties of each judge include the
obligation to visit the prisons within his or her jurisdiction periodically,
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conduct a roll-call and check that prisoners awaiting trial are actually being
held, and that those who have been granted their freedom are no longer being
held.
233. At its forty-seventh session, the Working Group met with a representative
of the Government of Honduras who informed the Group of the activities of the
Executive, the National Congress and the Supreme Court of Justice during 1995.
Observations
234. The Group wishes to express its appreciation for the cooperation of the
Government of Honduras. The Group welcomes the steps taken by the
Government's Commissioner for Human Rights to investigate the practice of
enforced disappearances in Honduras. It is also following with interest the
action taken to have alleged perpetrators of enforced disappearances and other
human rights violations tried by the ordinary courts. The pursuit of
investigations as well as the judicial proceedings under way involving the
trial of members of the armed forces can constitute positive steps in
compliance with Honduras' international obligation to conduct investigations
“thoroughly and impartially” (art. 13, para. 1, of the Declaration) and to
bring to justice persons presumed responsible for an act of enforced
disappearance (art. 14) before the ordinary courts (art. 16, para. 2) . In
this context, special attention should be paid to the international obligation
to take steps to protect all those involved in the investigation against
ill-treatment or reprisal (art. 13, para. 3)
India
235. During the period under review, the Working Group transmitted 10 newly
reported cases of disappearance to the Government of India, S of which
occurred in 1995 and were sent under the urgent action procedure. During the
same period, the Working Group clarified 3 cases in which it was reported
that the persons concerned had been released, and retransmitted to the
Government 4 cases updated with new information from the source. The Working
Group also eliminated 2 cases from its file owing to duplication and corrected
the statistics.
236. The majority of the 232 cases of disappearance transmitted to the
Government in the past occurred between 1983 and 1994 in the context of ethnic
and religious disturbances in the Punjab and Kashmir regions. The
disappearances in both regions were primarily attributable to the police
authorities, the army and paramilitary groups acting in conjunction with, or
with the acquiescence of, the armed forces. In Jammu and Kashmir numerous
persons are said to have disappeared after “shoot-outs” with security forces.
The disappearances were alleged to have been the result of a number of factors
related to the wide powers granted to the security forces under emergency
legislation, in particular the Terrorist and Disruptive Activities Act (TADA)
and the Public Safety Act. In addition to allowing preventive detention,
these laws reportedly allowed prolonged detention without the many other
safeguards available under the criminal law. The victims have included
shopkeepers, a lawyer who was reportedly well known for defending Sikhs
detained in the Punjab, journalists, students and others.
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237. All of the newly reported cases occurred in the province of Punjab. A
father and his daughter were reportedly arrested by the police with a view to
forcing the daughter's husband, whom the police were looking for, to
surrender. The mother of the chief general of the Khalistan Commando Force
(KCF) was reportedly arrested and taken to an unknown place. The
Secretary-General of the human rights wing of the Akali Dal political party
was reported to have disappeared following his arrest by police. The human
rights wing of the Akali Dal is said to have filed a petition in the High
Court alleging that several hundred “unclaimed” bodies had been cremated and
alleging that many of these were individuals who had disappeared following
their arrest by Punjab police and whose fate was unknown. The other cases
concerned a shopkeeper, a pilgrim and other members of the Sikh community
suspected by the Indian security forces of secessionist activities.
238. During the period under review, the Working Group received information
from non-governmental organizations on the situation of human rights,
primarily in Punjab and Jammu and Kashmir. With respect to Jammu and Kashmir,
it was reported that the army, the Central Reserve Police Force and
paramilitary Border Security Forces operate together and are implicated in
human rights violations. Reportedly, under the TADA, these forces can detain
anyone on the pretext of “public interest” . It was reported that the
detainees are not brought before any judicial authority to record their arrest
and define the charges against them, as the domestic law and article 10,
paragraph 1, of the Declaration on the Protection of All Persons from Enforced
Disappearance require. The detainees, therefore, may remain in detention for
excessive periods of time (sometimes months) , without any information being
given to their families on their whereabouts, in violation of article 10,
paragraph 2, of the Declaration. It was reported that among the persons who
have disappeared are individuals believed to be members or sympathizers of
armed opposition groups, or relatives of such persons. It was alleged that
these persons have disappeared or been killed in police custody, often after
having been subjected to torture. Officials reportedly link their deaths or
disappearances to clashes between militants and the police or to attempts to
escape. Several lawyers are reported to have been arrested and illegally held
by police in the past.
239. It was further alleged that orders issued by the High Court of the Jammu
and Kashmir to produce suspects before it have been repeatedly ignored by
government officials. This situation is said to facilitate disappearances.
A judge of the Court has reportedly commented that “even this court has been
made helpless by the so-called law-enforcing agencies. Nobody bothers to obey
orders of this court In the majority of cases the officials are said
to act with impunity, although in some rare cases the Government is said to
have taken measures against security forces accused of human rights
violations. However, no information on the identity of these persons nor the
off ences for which they were charged has reportedly been made public by the
Government. In this connection, the Working Group would remind the Government
of its responsibility under article 14 of the Declaration to bring the
perpetrators of disappearances to justice. Legal proceedings with regard to
cases of disappearances that are brought before the courts in Punjab are said
to be extremely slow. It is also reported that the Punjab police fail to
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comply with the orders of the courts and, further, are said to act outside
their operational district, without prior consultation or the permission of
the authorities concerned.
240. It was further reported that the security forces intimidate family
members of disappeared persons who seek redress from the judiciary in order to
investigate the fate of their missing relatives. They are allegedly harassed
and, in violation of article 13 of the Declaration, in some cases even
detained in order to prevent them from filing their complaints. Consequently,
family members fearing reprisals are said to refrain from reporting the
disappearance of their relatives.
241. During the period under review, the Government of India provided replies
on 70 individual cases as well as to the allegations concerning the
implementation of the Declaration, which the Working Group had received from
non-governmental organizations.
242. With regard to the individual cases, the Government reported that in one
case the person concerned had been arrested and produced in court (he was
subsequently released) ; in two cases, the Government stated that the cases had
been forwarded to the competent authorities for consideration. In respect
of 31 cases, the Government stated that the persons had neither been arrested
nor wanted by the authorities; in six cases the persons concerned had been
killed in an encounter with the police; in one case, the person had died in an
exchange of fire; in one other case the person had escaped from police
custody, jumped into a river and drowned; two persons had committed suicide
while in police custody; one other person had escaped and was found dead; two
persons had escaped from the police; two other persons were in detention; one
person had been released; one person had been produced in court and convicted;
the address of another person was given: six cases were under investigation
and in 12 others there was no information.
243. With regard to the information of a general nature submitted to the
Government, the Government of India stated, inter alia , that respect for human
rights was enshrined in the Indian Constitution whose provisions capture the
essence of the Universal Declaration of Human Rights and the two International
Covenants. The existence of a constitutionally established independent
judiciary, the multi-party democratic system, a free vibrant press and a host
of non-governmental organizations together constitute a powerful legal
framework and watchdog mechanism for the protection of civil liberties and
human rights. A National Human Rights Commission had been established under
the protection of the Human Rights Act with the objective of protecting and
promoting human rights in their widest form in the country. Several other
States had also set up their own statutory human rights commissions. The
system of parliamentary democracy provided for peaceful articulation and
resolution of diverse viewpoints. In such a system there could be no
justification for political dissent to be expressed by violence. The use of
violence in a deliberate and organized manner as well as the defence of the
use of violence by certain organizations could only be categorized as
terrorism and as support for practices violating human rights and undermining
the rule of law, democracy and a secular society.
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244. With respect to Jammu and Kashmir, the Government stated, inter alia ,
that the State of Jammu and Kashmir has been faced with an unprecedented
situation of militancy, aided and abetted from across the border, since 1989.
With the introduction of foreign mercenaries in large numbers with
sophisticated arms and ammunition, explosives, communication equipment and
materials for perpetrating acts of terrorism, the situation has assumed the
proportions of a proxy war. Terrorists trained and armed across the border
have unleashed on the innocent people of the State a reign of terror including
subversion of democratic institutions, stifling of press and media,
intimidation of the legal system and liquidation of people opposed to the
ideology of militant groups. Since 1990, 5,417 innocent people
(including 73 political leaders and workers, 6 members of the
judiciary, 9 members of the media, 254 government officials) have been
mercilessly massacred by the terrorists. The security forces themselves have
suffered heavy casualties including 1,109 deaths and four times that number of
injured/permanently incapacitated persons. An effective system exists under
the legal Constitution whereby a person, whether he belongs to the police or
the security forces, alleged to have committed any excess or crime is brought
“to book with utmost expedition”. The Government further stated that there is
no provision which guarantees any form of impunity to the law enforcement and
security forces against prosecution or disciplinary proceedings for any
excesses, misbehaviour or human rights violations. Since 1990, 261 security
force personnel have been implicated for various acts of commission and
omission. The punishments meted out ranged from departmental action to
rigorous imprisonment for 12 years. Consequently, the Government of India
regards the imposition of discipline on security forces and police personnel
as a matter of vital importance for maintaining the “professional rectitude of
its security forces” . Details were given on action taken against members of
the security forces for alleged abuses.
245. With regard to the allegation that persons arrested under substantive
laws are not produced before judicial magistrates and are kept in unlawful
detention without any information being given about their whereabouts, the
Government stated that such allegations are false and contradicted by facts.
In all cases of arrest, persons are produced before magistrates within the
period specified under law. Even in the exceptional cases of arrest in remote
areas, security forces are under strict instructions to provide information
and follow the procedure laid down by law. In case of preventive detention
under the Public Safety Act, the detainees are required to be provided with
the grounds of detention within five days of detention, and then their cases
are required to be placed before an Advisory Board under the Act within four
weeks of detention. The Government further reported that TADA had been
allowed to lapse on 24 May 1995. These legal requirements are met in all
cases of detention.
246. The Government stated that the allegation that government officials have
ignored the orders of the Jammu and Kashmir High Court is baseless. The
allegation that security forces intimidate the family members of the
disappeared person who seek redress by the judiciary, is totally baseless,
biased and contradicted by facts. The large number of habeas corpus petitions
filed and disposed of by the State High Court indicate that these observations
do not reflect the true picture. Had the family members been threatened or
intimidated by the security forces as alleged, these persons would not in the
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first place have come forward to file petitions in the High Court. During the
period 1990 to 1994, as many as 6,689 habeas corpus petitions were filed in
the High Court. State government responded to 99 per cent of such petitions
despite the tremendous strain under which the whole legal and administrative
system is having to function.
247. The observation that Punjab police have adopted the practice of acting
outside their operational jurisdiction without prior permission or
consultation of the authorities concerned is incorrect. “Following leads of
investigation within the territory of the Union of India is well within the
ambit of law and it is wrong to infer that there were any human rights abuses
including cases of alleged abduction of suspects from areas outside Punjab.
If and when any suspects were located and picked up, concerned local police
and judicial authorities were kept in the picture.”
248. Finally, the Government stated that “it remains the Government of India's
policy to cooperate fully with the Working Group on Enforced or Involuntary
Disappearances. All cases of alleged disappearances which are brought to the
attention of the police authorities are investigated. It is, however, an
inescapable fact that a number of allegations of disappearances have been made
concerning persons who have actually been exfiltrated across the border for
training in subversion. These can in no circumstances be considered cases of
disappearances and no investigation can be undertaken when cases are not
registered with the concerned authorities”
249. At its forty-seventh session, the Working Group met with representatives
of the Government of India who reiterated the Government's position with
regard to the allegations of a general nature which had been transmitted to
it. In connection with the Working Group's request to visit India, the
representatives stated that “the Government of India is committed to extending
its full cooperation to the Working Group. Facts clearly indicate that the
number of allegations have come down drastically over the last three years.
This pattern, therefore, stands established over a period of time and cannot
be ignored. Given the fact that the allegations of disappearances have
drastically fallen in the last three years, coupled with the Government of
India's commitment to investigate the old cases, it is the view of the
Government of India that the suggestion of the Working Group regarding a visit
to India in 1996 is deemed inappropriate and unnecessary”
Observations
250. The Working Group wishes to express its appreciation to the Government of
India for the replies which it submitted to the Group on individual cases, and
for sending representatives to meet with it at its forty-seventh session.
251. Nevertheless, the Working Group remains concerned at the fact that it
continues to receive allegations of disappearances in India. In this respect,
it reminds the Government of its obligation to prevent, terminate and punish
all acts of enforced disappearance. While the Working Group welcomes the fact
that the Terrorist and Disruptive Activities Act (TADA) was allowed to lapse
on 24 May 1995, it expresses its concern at the fact that, under the Public
Safety Act, detainees may be held in preventive detention for four weeks
without any remedy except to be placed before an Advisory Board. This
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contradicts the right, under article 10, paragraph 1, of the Declaration, of
any person deprived of liberty to be brought before a judicial authority
promptly after detention.
Indonesia
252. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Indonesia. During this
same period, the Working Group clarified two cases on the basis of information
previously submitted by the Government in which it was reported that the
persons concerned had been released from detention, and on which no
observations had been received from the source within the period of six
months.
253. The majority of the 418 cases of reported disappearance in Indonesia
occurred in 1991 and were related to the incident at the Santa Cruz cemetery
in Dili, East Timor, where, on 12 November 1991, security forces opened fire
on peaceful mourners during a memorial service for two youths who had been
killed in a clash with the police. It is alleged that over 200 persons were
killed and that about the same number of people disappeared on or shortly
after 12 November 1991. Several other cases of disappearance were also
reported to have occurred in East Timor in 1992, following the subject's
arrest by members of the armed forces.
254. During the period under review, the Working Group received no information
from the Government concerning these cases. The Group is, therefore, still
unable to report on the fate or whereabouts of the disappeared persons.
Observations
255. The Working Group remains concerned at the large number of cases of
disappearance which remain pending on its books, and wishes to remind the
Government of Indonesia of its obligation under the Declaration to thoroughly
investigate all reported cases of disappearance and to bring the perpetrators
to justice.
Iran (Islamic Republic of )
256. During the period under review, the Working Group transmitted one newly
reported case of disappearance to the Government of the Islamic Republic of
Iran which reportedly occurred in 1995 and was sent under the urgent action
procedure. It also retransmitted to the Government one case, updated with new
information from the source.
257. The majority of the 509 cases of reported disappearance occurred
between 1981 and 1989. Some of the missing persons were reportedly arrested
and imprisoned for their alleged membership in armed opposition groups.
258. The newly reported case concerns an Iranian student of biochemistry and
son of a Grand Ayatollah, who was reportedly arrested in July 1995 when
members of Iranian security forces raided his house in the city of Qom.
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According to the information received, the arrest took place some weeks after
his father wrote an open letter to the President of the Republic in which he
criticized the human rights practices of the Government.
259. During the period under review, the Government submitted information on a
number of individual cases, in which it reported that in the case of an
Australian architect, who disappeared in November 1993, an intensive search
operation had been launched by the Ministry of the Interior, the judicial
system and the police to locate the missing person and that the case was kept
on the agenda of several government departments and agencies. In one case
which had occurred in 1982 in Mashhad, the Government reported that the person
had been arrested in 1982 on drug charges, sentenced to and served three
years' imprisonment and was subsequently released. In another two cases the
Government stated that it did not have enough information to pursue the matter
further and requested further information. With regard to 16 cases, the
Government stated that either there was no record of subject arrests or that
the information submitted by the Working Group was insufficient to carry out
further investigations. The Government provided information on 15 cases of
disappearance, in which it stated that nine persons were judicially executed
after being found guilty of supporting terrorist activities, membership in a
terrorist group and/or violating the national security; two persons had been
pardoned and released; two persons had been killed during street armed clashes
and two other persons had disappeared during a subversive operation.
260. The Government also provided the Working Group with its comments and
observations on the report submitted by the Working Group to the fifty-first
session of the Commission on Human Rights (E/cN.4/1995/36, paras, 231-236)
The Government stated that “the Ministry of Justice, in accordance with its
official mandate, collects any information about any reported case of
disappearance and immediately transmits to the relatives any relevant
available information. The relatives of the missing persons should form a
legal dossier at the Supervisory Office of the Justice Administration and its
branches across the country. According to the Criminal and Civil Codes, any
claimant has the legal right to be represented by a lawyer or defence counsel
of his/her own choice.
261. As regards the list of disappeared persons, the Government stated that
“efforts have been made to trace their fate and whereabouts. However, in most
cases the information provided by the sources was not sufficient to allow a
comprehensive search. As a minimum, the father's name, date and place of
birth, and the address or telephone number of the next of kin were absolutely
necessary in order to enable the tracing process to proceed. As noted in the
Working Group's last report, most of the alleged disappearances were dated
between 1981 and 1988, a period during which Iran was dragged into an imposed
war with Iraq and, as a result, a large number of Iranian citizens have since
been missing”.
262. The Government further reported that “other incidents which may be
related to the alleged disappearances include numerous terrorist activities by
the Group called M.K.O. In a number of terrorist operations, the remains of
the bodies of those engaged were destroyed beyond identification. In
addition, members of this group often cross the border illegally to join their
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headquarters in Iraq without the knowledge of their relatives. In 1988, an
offensive operation was launched by this group which resulted in heavy
casualties for its members. The Government stated that there seems to exist a
strong likelihood that the names included in the list of the Working Group
could be related to these incidents”
263. Finally, the Government reiterated “its desire for full-fledged
cooperation with the Working Group aimed at the clarification of the alleged
cases of disappearance through exchange of all necessary and relevant
information and on the base of mutual confidence and understanding”. This was
underlined by a delegation of 12 representatives of the Government who met
with the Working Group during its forty-seventh session.
Observations
264. The Working Group welcomes the cooperation of the Government of Iran.
While it understands certain difficulties faced by the Government in tracing
disappeared persons, it reminds the Government that all the cases transmitted
to it by the Working Group appear to have the required elements established in
its methods of work, and stresses the obligation of the Government under the
Declaration to prevent, terminate and punish all acts of enforced
disappearance.
265. The Working Group wishes to point out that not even one of the cases
transmitted to it have been clarified on the basis of information submitted by
the Government. The Working Group, in this connection, emphasizes the
obligation of the Government of the Islamic Republic of Iran, under
articles 13 and 14 of the Declaration, to thoroughly investigate all reported
cases of disappearance and to bring the perpetrators to justice.
266. In cases in which the Government has informed the Working Group that the
disappeared person has been judicially executed, the Government is requested
to submit copies of the relevant judgements and death certificates, as is
required in all such cases dealt with by the Working Group.
Iraq
267. During the period under review, the Working Group transmitted a total
of 226 newly reported cases of disappearance to the Government of Iraq.
268. The great majority of the 16,131 cases of disappearance reported to have
occurred in Iraq concern members of the Kurdish ethnic group who allegedly
disappeared in 1988. A significant number of other cases concern ethnic Arabs
of the Shi'a faith who are reported to have disappeared in the late 1970s and
early 1980s in the course of the expulsion of their families to the Islamic
Republic of Iran on the allegation that they were of “Persian ancestry”.
269. Most of the cases transmitted in 1995 are said to have occurred
between 1980 and 1982 and concerned Kurds of the Shi'a faith, in the same
circumstances as described above.
270. During the course of 1995, information of a general nature was received
by the Working Group from non-governmental organizations. Profound concern
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was expressed to the Group over the large number of disappearances in Iraq
which remain unresolved. It is said that the Government has failed to assume
its responsibility to try to determine the fate and whereabouts of the
disappeared persons and to bring to justice the perpetrators of those crimes,
who are said to operate with total impunity. It is further alleged that due
to the lawlessness and arbitrariness of the political system in Iraq, as well
as the total lack of any reliable judicial system in the country, there is no
recourse through domestic remedies available to the families and, moreover,
that the families fear reprisal if they dare to make inquiries with the
authorities about their disappeared relatives. Indeed, as the Special
Rapporteur on the human rights situation in Iraq stated in his last report to
the Commission on Human Rights (E/CN.4/1995/56, paras. 65-66), “the structure
of power in Iraq is such that human rights violations are inevitable, since
guarantees for protection are absent and the scope for abuse of power is
enormous. Power is grossly abused on daily and widespread basis . . . and there
can be no doubt as to the State of Iraq's responsibility for the systematic
violation of human rights in Iraq”.
271. During the period under review, the Government of Iraq provided
information on 17 individual cases in which it reported that in 15 cases the
persons concerned were currently residing in Iraq, and in two cases the
persons had left the country. In response to a request from the Working
Group, the Government of Iraq submitted the addresses of 13 of these
individuals. However, the Government has not replied to the Working Group's
request for a visit.
Observations
272. The Working Group wishes to note that Iraq remains the country with the
highest number of disappearances on its files. This is a situation of extreme
concern to the Group, especially in view of the reported climate of a total
lack of any reliable judicial system, of total impunity and of continuing
intimidation and reprisals.
273. The Working Group stresses the obligation of the Government of Iraq under
the Declaration to prevent, terminate and punish all acts of enforced
disappearance. In this connection, the Group particularly refers to
article 9, paragraph 1, of the Declaration which states “The right to a prompt
and effective judicial remedy as a means of determining the whereabouts or
state of health of persons deprived of their liberty and/or identifying the
authority ordering or carrying out the deprivation of liberty is required to
prevent enforced disappearances under all circumstances ; article 13,
paragraph 1, which states “Each State shall ensure that any person having
knowledge or a legitimate interest who alleges that a person has been
subjected to enforced disappearance has the right to complain to a competent
and independent State authority and to have that complaint promptly,
thoroughly and impartially investigated by that authority ; and
article 13, paragraph 3, which states “Steps shall be taken to ensure that all
involved in the investigation, including the complainant, counsel, witnesses
and those conducting the investigation, are protected against ill-treatment,
intimidation or reprisal”.
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274. Furthermore, these allegations constitute violations of article 10 of the
Declaration which states, inter alia , that “accurate information on the
detention of such persons and their place or places of detention, including
transfers, shall be made promptly available to their family members” and
article 16 according to which persons alleged to have committed [ acts of
enforced disappearance] shall be suspended from any official duties during the
investigation”.
Israel
275. During the period under review, the Working Group transmitted one newly
reported case of disappearance to the Government of Israel and considered
clarified one case in which it was reported that the body of the person
concerned, a Palestinian living in the West Bank who was believed to have been
detained by the Israeli security forces, had been found.
276. The one other case transmitted in the past reportedly occurred in 1992 in
Jerusalem and concerns a man who allegedly did not return home from work. He
is believed to be detained in a prison in Tel Aviv.
277. The case transmitted in 1995 concerns a Palestinian who was reportedly
arrested in 1971 on the day a bomb had exploded in Gaza. Although he was
allegedly seen in detention, his whereabouts have remained unknown ever since.
278. During the period under review, no information was received from the
Government of Israel with respect to either of these cases. The Working Group
is, therefore, unable to report on the fate and whereabouts of the disappeared
persons.
Kazakhstan
279. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Kazakhstan.
280. The two outstanding cases of disappearance which reportedly occurred
in 1994 concerned persons of Uzbek nationality who were allegedly members of
the Uzbek political party “Erk”. They are said to have been living as
refugees in Kazakhstan and were reportedly abducted from their home in Almaly
by six officers, allegedly working for the Uzbekistan Ministry of the
Interior. It was believed that their abduction might have been connected to
their activities for a newspaper, reportedly produced outside Uzbekistan and
distributed clandestinely inside the country.
281. In accordance with the Working Group's methods of work, these cases were
transmitted to the Government of Kazakhstan, the country where the abductions
allegedly occurred, and a copy of the cases was sent to the Government of
Uzbekistan, since its forces were implicated in the abduction.
282. During the period under review, no information was received by the
Working Group from the Government of Kazakhstan with regard to these cases.
The Working Group is, therefore, unable to report on the fate and whereabouts
of the disappeared persons.
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Kuwait
283. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Kuwait. The Working
Group retransmitted the one outstanding case to the Government, updated with
new information from the source.
284. The one case of disappearance in Kuwait pending before the Working Group
was submitted in 1993 by a relative of the victim and concerns a “bedoun” of
Palestinian origin with a Jordanian passport, who was reported to have
disappeared in 1991 in the aftermath of the occupation of Kuwait by Iraqi
forces.
285. During the period under review, no new information was received from the
Government of Kuwait with regard to the outstanding case. The Working Group
is, therefore, still unable to report on the fate or whereabouts of the
disappeared person.
Lao People's Democratic Republic
286. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of the Lao People's
Democratic Republic.
287. The one outstanding case, which reportedly occurred in 1993, concerns the
leader of the repatriation groups returning to the Lao People's Democratic
Republic who reportedly left his residence with an official from the
Department of the Interior to go to the Department of the Interior to discuss
the future home for the returning repatriation groups. Since then his
whereabouts have remained unknown.
288. During the period under review, the Government of the Lao People's
Democratic Republic provided information on the one outstanding case of
disappearance, in which it reported that a thorough investigation of the
circumstances and an interrogation of the persons reportedly connected to the
disappearance of the subject had not yet revealed the exact reasons for his
disappearance. Extensive details by the Government were given on the
investigation which the Government had carried out. However, the whereabouts
of the person concerned remain unknown.
Lebanon
289. During the period under review, the Working Group transmitted 30 cases to
the Government of Lebanon, the majority of which reportedly occurred between
1982 and 1983.
290. The majority of the 279 cases of disappearances reported to the Working
Group in the past occurred in 1982 and 1983 in the context of the Lebanese
civil war. Those responsible for the disappearances are said to have belonged
to the Phalangist Militia, the Lebanese Army or its security forces; in some
cases, the Israeli Army was also reportedly involved in the arrest, together
with one of the other forces mentioned above. Most of the detentions occurred
in Beirut and its suburbs. Certain reports indicated that the arrests were
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made by armed men in civilian clothes operating from vehicles. In a number of
cases, the missing person was reportedly arrested and taken away from the
Sabra and Chatila camps in September 1982. In some cases which reportedly
occurred in 1984, 1985 and 1987, the arrested persons were foreign nationals
who were abducted in Beirut. In some of these cases, religious groups such as
the “Islamic Holy War” later claimed responsibility for the abductions.
291. Most of the cases submitted to the Working Group in 1995 also occurred in
the context of the Lebanese civil war, as described in the above paragraph.
In a few cases, the missing persons were reportedly transferred to and
detained in the Syrian Arab Republic. Several disappearances allegedly took
place at Lebanese Army check-points on the east/west border of Beirut. In one
case, the disappearance reportedly occurred at a check-point controlled by the
Syrian Army. Another case which occurred in 1985 concerns that of a merchant
who was allegedly abducted from his car while travelling from Tripoli to his
residence in the mountains, an area which was at that time under Syrian
control. It is believed that the missing person was later detained in
Damascus. A more recent case, which took place in 1992, concerns a member of
the political bureau of the Phalangist party, who was allegedly abducted in
front of his home, said to be in an area under the control of Syrian troops,
by a group of armed men in civilian clothes.
292. During the period under review, the Working Group received information
from the Government of Lebanon, in which it stated inter alia , that
from 1975 to 1990, Lebanon's situation was such that the State was
not able to exercise full control over national territory. In these
circumstances, numerous transgressions and breaches of human rights
occurred, not least the disappearance of several persons on Lebanese
territory. The successive investigations carried out by the competent
authorities have, unfortunately, been fruitless.
“Thanks to the Taif Agreement of 1989 and to the ensuing national
recovery, the State had regained legal and military jurisdiction over its
territory, with the exception of the Israeli-occupied region of South
Lebanon. The Israeli occupation of South Lebanon made it physically
impossible for the Lebanese State to conduct investigations in this
region, where there was a strong possibility that some of the persons in
question might be found. Similarly, the liberation of Lebanese nationals
abducted and detained in Israeli prisons and in the Israeli-controlled
Khiam detention camp could shed light on the fate of numerous persons
currently presumed missing.
“It followed that, for the above-mentioned reasons, the enforced or
involuntary disappearance of a number of persons on Lebanese soil could
not be ascribed to the Lebanese State.”
Observations
293. The Working Group wishes again to remind the Government of Lebanon of its
continuing responsibility to undertake all requested investigations, until the
fate of the missing persons is fully elucidated. In this respect, it has
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emphasized the applicability of article 7 of the Declaration to the particular
circumstances which affected Lebanon at the time of the above disappearances.
Libyan Arab Jamahiriya
294. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of the Libyan Arab
Jamahiriya. The one outstanding case, transmitted last year, concerns a
Sudanese translator at the International Centre of Research of the Green Book
in Tripoli, who reportedly disappeared in 1993.
295. To date, no response has been received from the Government of the Libyan
Arab Jamahiriya concerning this case. The Working Group is, therefore, unable
to report on the fate and whereabouts of the disappeared person.
Mauritania
296. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Mauritania.
297. The one outstanding case reportedly occurred in 1990 and concerned
a 21-year-old man who is said to have been taken by members of the National
Guard in a village in southern Mauritania during a nightly curfew.
Reportedly, at that time, many people belonging to the Hal-Pulaar ethnic group
in the south of the country were subjected to human rights violations,
allegedly carried out by government forces and the Haratine militia.
298. During the period under review, no new information was received from the
Government of Mauritania with regard to the outstanding case. The Working
Group is, therefore, unable to report on the fate and whereabouts of the
disappeared persons.
Mexico
299. During the period under review, the Working Group transmitted 23 newly
reported cases of disappearance to the Government of Mexico, 21 of which
occurred in 1995. All of the cases were sent under the urgent action
procedure. During the same period, it clarified 20 cases. The Working Group
also retransmitted to the Government 10 cases, updated with new information
from the sources.
300. The majority of the 314 reported cases of disappearance in Mexico
occurred between 1974 and 1981. Ninety-eight of these cases took place in the
context of the rural guerrilla warfare which was waged in the mountains and
villages of the State of Guerrero during the 1970s and the beginning of the
198 Os
301. Most of the newly reported cases occurred in February 1995 in the States
of Chiapas and Veracruz; 19 of these persons were members of several Indian,
peasant and political organizations, such as the Emiliano Zapata Peasant
Organization (OCEZ), the Independent Union of Rural and Peasant Workers
(C IOAC), the Mexican Workers, Peasants and Students Coalition (COCE I) , the
Indian People's National Coordinating Committee, the Emiliano Zapata Oriental
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Democratic Front and the Democratic Revolution Party (PRD) ; seven of these
persons were members of the indigenous ethnic groups Nahua, Tojolabal and
Zapoteca. Most of the arrests and detentions were carried out by members of
the State Judicial Police of Veracruz, the army and the State Judicial Police
of Oaxaca. Armed civilians reportedly participated in the detention of three
persons. The four other cases concerned four members of a family who were
reportedly detained in February 1995 in the city of Orizaba, State of
Veracruz, by members of the Municipal Police of Orizaba and taken to a
detention centre belonging to the Judicial Police, after being accused of
being in contact with the Zapatista National Liberation Army (EZLN)
302. During its forty-fifth and forty-sixth sessions, the Working Group met
with representatives of the Mexican National Commission for Human Rights, who
gave an account of the activities of its Special Programme on Alleged
Disappearances and provided extensive information on 31 cases of
disappearance. Seven cases were subsequently considered clarified by the
Working Group; in four cases the subject had been released, in one case the
person concerned was found in prison, in one other case the subject had been
found alive, and in another case the Working Group was provided with a
certified copy of a judicial resolution on the subject's presumed death. On
the other 10 cases, the Working Group decided that they will be considered
clarified if the sources do not contest information within a period of six
months. The information provided on the other 14 cases was considered by the
Working Group, in accordance with its methods of work, as insufficient to
constitute a clarification.
303. In the course of 1995, the Working Group also considered clarified eight
cases on the basis of information provided by the Government and the Mexican
National Commission for Human Rights during 1994.
304. During the period under review, the Government of Mexico sent to the
Working Group a response to its “prompt intervention” cable of
27 September 1994 concerning reports of alleged acts of intimidation,
harassment and reprisals against members of the Comité de Familiares de
Desaparecidos Comité Eureka, the Brother Francisco Victoria Human Rights
Centre and the Independent National Committee for the Defence of Prisoners,
Persecuted and Missing Persons and Political Exiles (CNI) . The Government
reported that the authorities allegedly responsible had denied any involvement
in the matter. The Mexican National Commission for Human Rights subsequently
sent an official communication to the non-governmental organizations,
requiring them to provide stronger evidence in support of their complaints, so
that the proper course to be followed in that respect could be determined.
Observations
305. The Group wishes to express its appreciation for the cooperation of the
Government of Mexico and for the positive results achieved by the National
Commission for Human Rights in its investigations, which have had the effect
of clarifying a large number of cases.
306. The Group takes note of the fruitful work relationship established with
the Mexican State through the National Commission for Human Rights. However,
it regrets the absence of any marked change in the trend reflecting the number
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of cases of enforced disappearance, and for this reason considers it is vital
that the Mexican State should take “effective legislative, administrative,
judicial or other measures to prevent and terminate acts of enforced
disappearance”, as stated in article 3 of the Declaration on the Protection of
All Persons from Enforced Disappearance.
307. Moreover, the Group would point out that, in accordance with the
provisions of the Declaration, the conduct of investigations “thoroughly and
impartially” (art. 13) into outstanding cases will remain the Mexican State's
international obligation “for as long as the fate of the victim of enforced
disappearance remains unclarified” (art. 13, para. 6) . Lastly, it urges that
more effective action should be taken to protect persons and organizations
involved in the investigation of acts of enforced disappearance against
intimidation or reprisal, in accordance with article 13, paragraph 3, of the
Declaration.
Morocco
308. During the period under review, the Working Group transmitted two cases
to the Government of Morocco, one of which reportedly occurred in 1976 and one
in 1981. During the same period, the Working Group clarified 50 cases. It
also deleted one case from its files due to duplication and corrected the
statistics.
309. The majority of the 232 cases of disappearance transmitted to the
Government were reported to have occurred between 1972 and 1980 and during the
1980s. Most of them concerned persons of Western Saharan origin who were
reported to have disappeared in territories under the control of the Moroccan
forces, because they or their relatives were known or suspected supporters of
the Polisario Front. Students and better educated Sahraouis were reported to
have been particularly targeted. In some instances, disappearances allegedly
followed the mass arrest of persons after demonstrations or before visits of
prominent persons or officials from other countries.
310. Disappeared persons were reported to have been confined in secret
detention centres, such as Laayoune, Qal'at M'gouna, Agdz and Tazmamart.
Cells in some police stations or military barracks, and secret villas in the
Rabat suburbs, were also allegedly used to hide the disappeared. Despite the
release in 1991 of a large group of prisoners, several hundred other Western
Saharans are said to remain unaccounted for, and their families are reportedly
still pursuing their inquiries with the Moroccan authorities and detention
centres.
311. The two new cases transmitted in 1995 by the Working Group to the
Government of Morocco concern a person of Saharan origin who was allegedly
abducted in 1976 as he was trying to escape shelling by the Moroccan Air Force
and go to the camp for refugees of Saharan origin and a student who was
reportedly abducted by the security forces in Casablanca in 1981 on the day
when the Democratic Confederation of Labour launched a general strike
reportedly generating disturbances and many arrests.
312. During the period under review, the Government of Morocco forwarded to
the Working Group information concerning 64 individual cases of disappearance.
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It provided in particular the current address of 47 disappeared persons and
indicated that 15 other missing persons had died since they disappeared. Two
other cases concerned persons who were currently being detained in Agadir and
in Kenitra.
313. The Government of Morocco further stated that there had been no
disappeared persons of Saharan origin detained in Tazmamart. The allegations
of disappearance of hundreds of persons of Saharan origin were made by groups
hostile to Morocco. In addition, the Government of Morocco stated that
contrary to what was said in the Working Group's last report the act leading
to an enforced disappearance was a crime and Moroccan law contained various
provisions against enforced disappearances, e.g. articles 224 to 228 and
articles 436 to 440 of the Moroccan Penal Code.
314. The Government further reiterated its willingness to provide the Working
Group with all information deemed necessary to identify the missing persons on
the Group's books. The Government also provided an extract of a death
certificate in relation to one case and a copy of a declaration whereby the
current place of residence of a former missing person was confirmed. It also
transmitted to the Working Group the address of relatives of two deceased
missing persons, specifying that one family in particular had benefited from
various forms of assistance through the intervention of the Ministry of Human
Rights.
315. During an exchange of views with the Working Group at its forty-sixth
session, representatives of the Government of Morocco reiterated its
willingness to make every possible effort to elucidate the fate of the persons
still considered as disappeared by their families or by international
organizations dealing with their cases. Investigations were under way on all
the outstanding cases of disappearance. However, the Government of Morocco
faced certain constraints owing to the fact that the majority of the cases
were very old and that the transcription of names did not always provide the
complete data regarding the family antecedents of the missing person.
316. The Government of Morocco reaffirmed its willingness to put an end to the
problem of disappearances in its country and to rehabilitate and compensate
the former disappeared persons and their families. It also stated its
commitment to avoid the repetition of acts of disappearance, in accordance
with the relevant provisions of the Moroccan Penal Code, and to punish those
who engage in disappearances in any way.
Observations
317. The Working Group wishes to express its appreciation to the Government
for sending representatives to the Working Group's forty-sixth session and for
its efforts to clarify the outstanding cases of disappearances. It wishes to
remind the Government, however, that under article 4 of the Declaration the
very act of enforced disappearance as such shall be made an offence under
criminal law punishable by appropriate penalties.
318. Furthermore, under articles 13.6 and 19 of the Declaration,
investigations must continue even in very old cases “for as long as the fate
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of the victim of enforced disappearance remains unclarified” and in such cases
the families “shall have the right to adequate compensation, including the
means for as complete rehabilitation as possible”.
Mozambigue
319. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Mozambique.
320. The one outstanding case reportedly occurred in November 1974 and
concerned the President of the Mozambique Revolutionary Committee, who was
said to have been arrested in 1974 in a hotel in Blantyre, Malawi, and to have
been taken first to Mozambique and then to the southern part of the United
Republic of Tanzania. It was believed that he was then transferred to Niassa
province, Mozambique.
321. Although a number of reminders have been sent, no information has ever
been received by the Working Group from the Government of Mozambique with
regard to this case. The Working Group is, therefore, unable to report on the
fate and whereabouts of the disappeared person.
Nepal
322. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Nepal.
323. Four of the five outstanding cases of disappearance reported to the
Working Group occurred in 1985 and concern four men who reportedly disappeared
from police custody in 1985. In late 1984, a series of nation-wide political
protests started in Nepal. In June 1985, following bomb explosions in
Kathmandu and other cities, numerous persons were reportedly arrested and some
of them were allegedly held in incommunicado detention for several months.
The one other case of reported disappearance pending on the Working Group's
books is said to have occurred in 1993 and concerns a student who allegedly
disappeared in Kathmandu.
324. During the period under review, no new information was received from the
Government of Nepal with regard to the outstanding cases. The Working Group
is, therefore, unable to report on the fate and whereabouts of the disappeared
person.
Nicaragua
325. During the period under review, the Working Group transmitted two newly
reported cases of disappearance to the Government of Nicaragua, both of which
reportedly occurred in 1994 and one of which was sent under the urgent action
procedure.
326. Of the 234 cases reported to the Working Group, 131 have been clarified.
Most of these cases occurred between 1979 and 1983, in the context of the
internal armed conflict which took place during the decade of the 1980s. Many
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of the reports of these disappearances pointed to the involvement of members
of the army, the former Sandinist police, the former General Directorate for
the Security of the State and the Frontier Guard.
327. Of the newly reported cases, one concerns a farmer who was allegedly
detained in October 1994 on his way to La Montaflita sector, between the
Matagalpa-Jinotega and the Panamerican Highway, by a group reportedly composed
of members of the army and the National Police. The other newly reported case
concerns a resident of Santa Rosa, in the jurisdiction of the municipality of
Waslala, Department of Matagalpa, who was reportedly arrested in July 1994 by
members of the army and taken to a military unit after being accused of being
a member of the Recontras armed groups.
328. During the period under review, no information was received by the
Working Group from the Government of Nicaragua concerning the 103 outstanding
cases. The Working Group is, therefore, unable to report on the fate and
whereabouts of the persons concerned.
Observations
329. While the Working Group can understand the difficulties encountered by
the Nicaraguan authorities, it cannot but regret the lack of communication
from the Government which would enable it to know whether or not any steps
have been taken by the authorities to investigate the outstanding cases of
disappearance. The Working Group wishes to remind the Government of
Nicaragua of its international obligation, under article 13, paragraphs 1
and 6, of the Declaration, to conduct a “thorough and impartial investigation”
for “as long as the fate of the victim of enforced disappearance remains
unclarified”
Pakistan*
330. During the period under review, the Working Group transmitted 32 newly
reported cases of disappearance to the Government of Pakistan, 31 of which
reportedly occurred in 1995 and 1 in December 1994. All the cases were sent
under the urgent action procedure.
331. The majority of the 21 cases of disappearance previously reported to the
Working Group were alleged to have occurred in 1986 and between 1989 and 1991,
and concerned persons of Afghan nationality with refugee status in Pakistan.
Most of the persons concerned were said to be affiliated with the Harakate
Ingilaba Islami Afghanistan party. The abductions reportedly took place in
Peshawar, North-West Frontier Province, by persons belonging to a rival party,
the Hezb-e-Islami Afghanistan, which was alleged to be acting with the
acquiescence of the Pakistani authorities.
332. Most of the newly reported cases concerned the disappearance of members
or sympathizers of the political party Muhajir Qaomi Movement (MQM), who were
allegedly arrested by the police or security forces during May and June 1995.
* Mr. Agha Hilaly did not participate in the decisions relating to this
subsection of the report.
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The majority of the disappearances occurred in Karachi. One other case
concerned an Afghan refugee living in Peshawar who was allegedly abducted in
front of his home by plain-clothes men said to be connected to the Afghan
Hezb-e-Islami party of Hekmatyar.
333. During the period under review, information of a general nature was
received from non-governmental organizations. It was said that in violation
of article 6 of the Declaration on the Protection of All Persons from Enforced
Disappearance, the police, the paramilitary group Rangers and other law
enforcement agencies conduct “clean-up” operations, which consist in the
arbitrary arrest or abduction of members of the MQM and their subsequent
disappearance. It was further reported that in compliance with provisions of
domestic law and article 10 of the Declaration, family members have filed
petitions with the High Courts of Lahore and Karachi, requesting that their
relatives be brought before a judicial authority. However, it is reported
that such persons were never produced before the courts or any judicial body,
nor was any information provided to the relatives about the whereabouts of
these detained persons, in violation of article 10, paragraph 2, of the
Declaration. It was said that the perpetrators of these disappearances act
with impunity, and that the Government has reportedly taken no action against
such persons, in spite of its responsibility under article 14 of the
Declaration.
334. It was further reported that a number of Afghan political refugees living
in Pakistan were abducted by Afghan authorities who allegedly acted with the
acquiescence of the Government of Pakistan in violation of articles 3 and S of
the Declaration.
335. During the period under review, the Government of Pakistan provided
information on one case in which it reported that the person concerned had
been picked up by Qasim Rangers for interrogation and released the same day.
However, he has been missing ever since, and the Government stated that
investigations have been initiated by the authorities to locate him.
Observations
336. The Working Group is deeply concerned at the sharp increase in reported
cases of enforced disappearance which allegedly occurred in Pakistan in 1995.
It wishes to remind the Government of its responsibility under the Declaration
to prevent and terminate all acts of disappearance and to bring the
perpetrators to justice.
337. In particular, the Working Group wishes to stress the obligation under
article 10 of the Declaration to hold persons deprived of liberty only in an
officially recognized place of detention, to maintain official up-to-date
registers of all persons deprived of their liberty and to make accurate
information on the detention of such persons promptly available to their
family members and counsel.
Paraguay
338. During the period under review, new cases of disappearance were
transmitted by the Working Group to the Government of Paraguay.
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339. Of the 23 cases transmitted by the Working Group to the Government of
Paraguay, 20 have been clarified. All of these cases occurred between 1975
and 1977 under the military Government. It should be noted that the Group has
received no reports of disappearances occurring in Paraguay since 1977.
Several of the disappeared persons were members of the Communist party,
including one who was Secretary-General of the party. Although disappearances
took place in the capital, Asunciôn, the majority of the cases affected the
rural population and were carried out in the districts of San José,
Santa Helena, Piribebuy, Santa Elena and Santa Rosa.
340. On 26 May and 23 August 1995, the Government of Paraguay informed the
Working Group that the newly appointed Attorney-General had undertaken efforts
to pursue the investigations into the whereabouts of the three persons whose
cases remain outstanding.
Peru *
341. During the period under review, the Working Group transmitted three newly
reported cases of disappearance to the Government of Peru, two of which were
transmitted under the urgent action procedure; all three cases reportedly
occurred in 1995. During the same period, the Working Group clarified three
cases: one, on the basis of information previously provided by the Government
on which no observations had been received from the source within a period of
six months, one in which the source reported that the person had been
extrajudicially executed, and one in which the person concerned informed the
Working Group that he was currently living abroad. In accordance with its
methods of work, the Working Group transmitted the last case to the Special
Rapporteur on extrajudicial, summary or arbitrary executions. The Working
Group also retransmitted to the Government five cases, updated with new
information from the source.
342. During the period under review, the Chairman of the Working Group,
together with the Special Rapporteurs of the Commission on Human Rights on the
independence of the judiciary, extrajudicial, summary or arbitrary executions,
and on torture addressed a joint appeal to the Government of Peru expressing
concern at the promulgation by the Government, on 14 June 1995, of an amnesty
law. The law provided for amnesty to military, police or civilians who,
during the course of their official functions, were accused, investigated,
tried or condemned for common crimes or abuses which occurred during the fight
against terrorism since May 1980 up to the date of the promulgation of the
law.
343. The Government of Peru, in a letter dated 21 August 1995, responded
to the authors of the joint appeal. The Government noted that
Peru was confronting a variety of serious problems including terrorism,
drug trafficking, extreme poverty, degradation of the environment and urban
violence; nevertheless, it remained firm in its commitment to the process of
strengthening and expanding a democratic culture. The Government was trying
to consolidate a process of pacification aimed at restoring security and hope
* Mr. Diego Garcia-Saymn did not participate in the decisions relating to
this subsection of the report.
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to the Peruvian people. The Amnesty Law was promulgated as part of this
process. The Government also reported that the Congress was considering a
bill to compensate relatives of victims of human rights violations. The
Government gave additional details on the articles of the Constitution under
which the law was passed, as well as the other measures taken in connection
with the process of pacification.
344. The vast majority of the 2,879 cases of reported disappearances in Peru
occurred between 1983 and 1992 in the context of the Government's fight
against terrorism, especially Sendero Luminoso (Shining Path) . In late 1982,
the armed forces and police undertook a counterinsurgency campaign and the
armed forces were granted a great deal of latitude in fighting Sendero
Luminoso and in restoring public order. While the majority of reported
disappearances took place in areas of the country which had been under a state
of emergency and were under military control, in particular in the regions of
Ayacucho, Huancavélica, San Martin and Apurimac, disappearances also took
place in other parts of Peru. Detentions were reportedly frequently carried
out openly by uniformed members of the armed forces, sometimes together with
the Civil Defence Groups. Some 20 other cases reportedly occurred in 1993 in
the Department of Ucayali and concerned largely the disappearance of peasants.
345. Out of concern for the situation of disappearances in Peru, two members
of the Working Group, at the invitation of the Government visited Peru from
17 to 22 June 1985 and again from 3 to 10 October 1986, on the Group's behalf.
Their reports are contained in documents E/CN.4/1986/18/Add.1 and
E/CN. 4/1987/15/Add. 1.
346. All of the newly reported cases are said to have occurred in 1995, and
concern a student in Lima who reportedly disappeared after being forced into a
car by four armed men; the other two cases concern peasants who were
reportedly detained by members of the armed forces in the Departments of Junin
and San Martin, and subsequently disappeared.
347. The Working Group received abundant information from non-governmental
organizations expressing serious concern about the Amnesty Law (see para. 342
above) . The law had the immediate effect of freeing from prison those
military officers convicted in the La Cantuta cases, a forced disappearance -
later summary execution - in which the victims, nine university students and
one professor, were eventually found to have been murdered by the military.
Serious concern was expressed by non-governmental organizations that the
Amnesty Law would also destroy any dissuasive value existent in the Penal
Code, vis-â-vis future human rights violations.
348. To prevent any questioning by the judicial authorities of the Amnesty
Law, on 28 June 1995, Congress passed yet another law, No. 26492, prohibiting
the courts from reviewing it and obligating judges to grant the amnesty.
349. It has further been reported to the Working Group that even when there
has been a will to investigate cases of disappearance by the judicial
authorities, the lack of cooperation from the military combined with threats
against attorneys and witnesses have made it impossible to pursue the case.
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350. Non-governmental organizations have further expressed serious concern
about the number of cases pending before the Working Group which remain
unclarified. “Profound dismay” has been expressed that years after a person
has been abducted, the investigation into his subsequent “disappearance” is
closed without his fate having been established and without the perpetrators
having been brought to justice.
351. During the course of 1995, the Government of Peru provided a number of
replies on individual cases and information of a more general nature to the
Working Group. With respect to individual cases, the Government reported,
inter alia , that in 12 cases the persons concerned had been released;
in 4 cases the persons concerned were in detention; in 3 cases the persons
concerned had reappeared; in 3 other cases investigations into the
disappearance were continuing; in 52 cases the persons concerned had not been
detained or intervened against, and in 3 cases, following investigations, the
whereabouts of the persons concerned could not be determined.
352. The Government also informed the Working Group about the promulgation of
the National Council of Justice Organization Act. The Government was fully
responsive to the need for an autonomous, independent and effective judiciary
as the best safeguard of the constitutional State, and the promulgation of
this Act was a demonstration of the political will of the Government of Peru
to implement specific measures that would contribute to optimizing the
administration of justice in the country. The National Council of Justice was
an autonomous body independent of other constitutional bodies and its primary
functions are the selection, appointment and confirmation or removal of all
judges and prosecutors, with the sole exception of those elected by the
people. As a safeguard of the independence of the National Council of
Justice, neither the Executive nor the Legislature may take part in the
election of its members.
353. During the period under review, the Government also provided information
to the Working Group on the changes in anti-terrorist legislation. On
20 April 1994 the Executive promulgated Act No. 26447, approved by the
Democratic Constituent Congress, which provides for the presence of a defence
counsel from the beginning of police action, instead of only once the detainee
had made a statement to the public prosecutor's department. It also reported
that a minor under 18 years old is free from criminal liability, recalling the
previous provisions which had lowered the minimum age for criminal liability
to 15 years.
354. The Government of Peru also provided statistics on cases of
disappearances alleged to have occurred during the first semester of 1995. It
informed the Group that five cases had been reported so far in 1995; four were
in the process of investigation and one had been resolved. Two of the cases
reportedly occurred in Lima, one in Lambayeque, one in Junin and one in
Huancavélica. The Government provided statistics on other violations of human
rights reported during the first six months of 1995 in which is stated that
there had been 50 complaints, of which 34 were under investigation and 16 had
been archived. Further information was given with regard to previous years.
In this connection it reported that of a total of 120 cases of reported
disappearances, most had occurred in 1992 and 1993.
E/cN. 4/1996/38
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Observations
355. The Working Group wishes to express its appreciation to the Government of
Peru for the extensive information which it has submitted to the Group during
the period under review. The Group also wishes to note that the number of
reported cases of disappearance in Peru has declined in comparison with
previous years, which is a positive development.
356. Nevertheless, the Group wishes to express its deep concern at the Amnesty
Law and the law of interpretation. Both laws are in contradiction to the
Declaration, which establishes the obligation of States to prosecute the
presumed perpetrators of acts of enforced disappearance (art. 17) before the
ordinary tribunals (art. 16, para. 2) . In enacting the above-mentioned laws,
the State of Peru has failed to fulfil its international commitment that the
perpetrators or presumed perpetrators of enforced disappearance should not
benefit from an amnesty law (art. 18) . The impunity which such laws create is
conducive to the repetition of such acts as well as to other forms of human
rights violations.
357. Furthermore, both the above-mentioned law of interpretation as well as
the limited cooperation of certain authorities in the investigation undertaken
by the judiciary affect the possibility to apply criminal penalties (art. 5)
Limitations on the exercise of the right to habeas corpus also affect access
to a prompt and effective judiciary (art. 9) . Finally, threats and acts of
reprisals against lawyers and witnesses not only make it difficult to carry
out investigations, but are also in violation of article 13, paragraph 3, of
the Declaration.
358. The Working Group calls upon the Peruvian authorities to take appropriate
“legislative, administrative and judicial measures in order to prevent and
terminate acts of enforced disappearance” (art. 3) and reminds the Government
that in accordance with the provisions of the Declaration, the Government has
an obligation to carry out thorough and impartial investigations (art. 13) for
as long as the “fate of the victim of enforced disappearance remains
unclarified” (art. 13, para. 6).
Philippines
359. During the period under review, the Working Group transmitted one newly
reported case of disappearance to the Government of the Philippines which
reportedly occurred in 1995 and which was sent under the urgent action
procedure. During the same period, the Working Group clarified this case when
the person concerned was reported to have been released. Two other cases were
also clarified during this period on the basis of information previously
submitted by the Government in which it was reported that the persons
concerned were in detention, and on which no observations had been received
from the source within a period of six months. The Working Group also deleted
one case due to duplication, corrected the statistics and informed the
Government.
360. The majority of the 648 reported cases of disappearance occurred in the
late 1970s and early 1980s, virtually throughout the country, and took place
within the context of the Government's anti-insurgency campaign.
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361. During the period 1975 to 1980, the persons who disappeared were
reportedly farmers, students, social workers, members of church groups,
lawyers, journalists and economists, among others. The arrests were carried
out by armed men belonging to an identified military organization or to a
police unit such as the Philippine Constabulary, the Central Intelligence
Unit, the military police, the Integrated National Police, and other
organizations. In the following years, the reported cases of disappearance
concerned young men living in rural and urban areas, described as members of
legally constituted student, labour, religious, political or human rights
organizations, which the military authorities have claimed are a front for the
outlawed Communist Party of the Philippines (CPP) and its armed wing, the New
People's Army (NPA) . Among the groups most commonly targeted were said to be
KADENA (Youth for Democracy and Nationalism) and the National Federation of
Sugar Workers.
362. Despite the peace talks initiated by the Government with several
opposition movements, disappearances have continued in the 1990s, mainly in
the context of violations committed by NPA, the Moro National Liberation
Front, the Mindanao Islamic Liberation Front, the Citizen Armed Forces
Geographical Units and the Civilian Volunteer Organizations. The more
recently reported cases have concerned, inter alia , a human rights worker
and several persons suspected of being members of NPA.
363. Out of concern for the situation of disappearances in the Philippines,
and at the invitation of the Government, two members of the Working Group
visited the country from 27 August to 7 September 1990. A full report on
their visit is contained in document E/cN.4/1991/20/Add.1.
364. The one case transmitted in 1995 concerned a human rights worker who
was reportedly abducted at a bus-stop by four armed men in civilian clothing
believed to be members of the military intelligence group of the Philippine
Armed Forces.
365. During 1995, the Government of the Philippines provided information on
over 100 cases. In one case it reported that the person concerned had been
released, and the case was subsequently clarified. With regard to 95 cases,
the Government stated that they had been consigned to the archives for lack of
evidence or information or that the whereabouts of the persons still could not
be determined. With regard to seven cases the person had died; in four cases
they had been released and in another four cases the whereabouts of the person
had been determined.
Observations
366. The Group expresses its appreciation to the Government of the Philippines
for the information it submitted to it during the reporting period.
Nevertheless, the Working Group wishes to remind the Government of its
international obligation, under articles 13.1 and 13.6 of the Declaration,
to conduct a “thorough and impartial investigation” for “as long as the fate
of the victim of enforced disappearance remains unclarified”, rather than
consigning it to the archives for lack of evidence.
E/cN. 4/1996/38
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367. On the other hand, the Working Group urges the Filipino authorities
to take all possible measures to ensure the protection of human rights
organizations, families and witnesses, in accordance with article 13.6 of
the Declaration.
Rwanda
368. In the aftermath of President Habyarimana's death in a plane crash
on 6 April 1994, Rwanda has been torn by an unprecedented human tragedy.
Hundreds of thousands of civilians, including large numbers of women and
children, have been killed or have disappeared, and hundreds of thousands
are displaced within the country or have found refuge in other countries.
369. The human rights field officers deployed by the High Commissioner for
Human Rights in support of the Special Rapporteur on the situation of human
rights in Rwanda and the Commission of Experts established pursuant to
Security Council resolution 935 (1994) , have been instructed to receive
pertinent information about disappearances and channel such reports to the
Working Group. The dimension of the Rwandan tragedy, and the fact that the
number of persons who have perished or were forced to leave their places of
residence constitute about half of the entire population, make it difficult
to distinguish between those who have been victims of massacres and those who
have disappeared.
370. Within this context, reports of “disappearances” in post-genocide Rwanda
have been rare. Several reasons may be cited. In some cases of alleged
missing persons, unreliable prison records may render identification or
location of those persons virtually impossible. Also, persons within the
community, including family members of missing persons, may be reluctant to
come forward and declare the possible abduction of one of their members, for
fear of reprisals or harassment.
371. In some cases, the issue by the mayor of a mandat d'amener , especially
on the charge of complicity in the genocide, may cause family members to take
flight for fear of being implicated themselves. There are also those cases in
which the human rights field operation in Rwanda has received reports, from
NGOs or disinterested parties, of the arbitrary or illegal arrest of persons
within the community, whilst the local population itself remained silent.
This was attributed to the tacit complicity on the part of the community
in the removal and execution of a known “ génocidaire ”
372. Of the eight reported cases of disappearance currently pending on the
Working Group's files, five occurred in 1990 and 1991 in the north of the
country, in the context of the ethnic conflict between Tutsis and Hutus.
Three cases took place in 1993 in northern Rwanda and concerned students from
the Seventh Day Adventist University in Mudende suspected of supporting the
Rwandese Popular Front.
Observations
373. While understanding the magnitude of the human rights tragedy in Rwanda,
the Working Group urges the Government to take all measures necessary to
create a climate in which enforced disappearances will not occur in the
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future. In addition, it wishes to remind the Government of its obligation
under article 13 of the Declaration to investigate all allegations of
enforced disappearance and to take steps to ensure “that all involved in
the investigation, including the complainant, counsel, witnesses and those
conducting the investigation, are protected against ill-treatment,
intimidation or reprisal”.
Saudi Arabia
374. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Saudi Arabia.
375. The one outstanding case was transmitted in 1992 and concerns a
Saudi Arabian businessman who was allegedly arrested in Amman in 1991 by
Jordanian security forces, and was later reportedly handed over to the
Saudi Arabian authorities. He is believed to be currently held at a secret
location in Riyadh.
376. To date, no response has ever been received from the Government of
Saudi Arabia concerning this case. The Working Group is, therefore, unable
to report on the fate of the disappeared person.
Seychelles
377. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Seychelles.
378. The three reported cases of disappearance allegedly occurred on the main
island of Mahé in the years 1977 and 1984. All three persons were allegedly
abducted shortly after they left their homes by persons believed to belong
to the security forces. At least two of the persons were reportedly known
opponents of the Government.
379. During the same period, no new information was received from the
Government of Seychelles with regard to these cases. The Working Group is,
therefore, still unable to report on the fate or whereabouts of the missing
persons.
South Africa
380. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of South Africa.
381. The majority of the 11 cases of disappearance reported to the Working
Group occurred between 1976 and 1982 in Namibia. Since, at that time,
Namibia was under South African jurisdiction, and the responsibility for the
disappearance was imputed to agents of that country, in accordance with the
Working Group's methods of work, the cases are retained on the South Africa
country file. One other case, however, was reported to have occurred in
late 1993, and concerned a young woman, reportedly a member of the African
National Congress, who was found dead two weeks after her reported
disappearance. The Working Group clarified this case in 1994.
E/cN. 4/1996/38
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382. During its forty-fifth session, the Working Group met with a
representative of the Government of South Africa who expressed the desire of
his Government to resolve the issue of the outstanding cases. He explained
the difficulty for the South African authorities in pursuing matters since the
disappearance occurred in Namibia and South Africa had no legal jurisdiction
in that country. However, he assured the Working Group that the Government
would do its utmost to resolve the matter.
Sri Lanka
383. During the period under review, the Working Group transmitted 40 newly
reported cases of disappearance to the Government of Sri Lanka, 36 of which
reportedly occurred in 1995 and were sent under the urgent action procedure.
It also clarified three cases on the basis of information previously provided
by the Government on which no observations had been received from the source
within a period of six months. The Working Group, furthermore, deleted
two cases from its files since they had no date of disappearance, corrected
the statistics and informed the Government.
384. Since the establishment of the Working Group in 1980, 11,479 cases of
disappearance alleged to have occurred in Sri Lanka have been reported to the
Working Group. The cases occurred within the context of two major sources of
conflict in that country: the confrontation of Tamil separatist militants
and government forces in the north and north-east of the country and the
confrontation between the People's Liberation Front (JVP) and government
forces in the south. Cases reported to have occurred between 1987 and 1990
took place mostly in the Southern and Central Provinces of the country, during
a period in which both security forces and JVP resorted to the use of extreme
violence in the contest for State power. In July 1989, the conflict in the
south took a particularly violent turn when the JVP adopted even more radical
tactics, including enforced work stoppages, intimidation and assassination,
as well as targeting the family members of the police and army. To thwart
the JVP military offensive, the State launched a generalized counterinsurgency
campaign and the armed forces and the police appear to have been given wide
latitude of action to eliminate the rebel movement and restore law and order
in any way they saw fit. By the end of 1989, the armed forces had put down
the revolt, having succeeded in capturing and executing the nucleus of the JVP
leadership.
385. Cases reported to have occurred since 11 June 1990, the date of
resumption of hostilities with the Liberation Tigers of Tamil Eelam (LTTE)
have taken place primarily in the Eastern and North-Eastern Provinces of
the country. In the north-east, the persons most often reported detained
and missing were young Tamil men accused or suspected of belonging to,
collaborating with, aiding or sympathizing with LTTE. Tamil persons
internally displaced owing to the conflict and staying in informal shelters
such as church or school centres were the group particularly at risk of
detention and disappearance. The most frequently utilized method of detention
in the north-east was the cordon-and-search operation in which the army, often
in conjunction with the police, and particularly the Special Task Force, went
into a village or a rural area and detained scores of persons. Many were
released within 24 to 48 hours, but a percentage of the persons remained in
custody for questioning.
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386. Out of concern at the situation of disappearances in Sri Lanka, and
at the invitation of the Sri Lanka Government, the Working Group undertook
two missions to that country from 7 to 18 October 1991 and from S to
15 October 1992. Members of the missions met with government officials,
non-governmental organizations, relatives and friends of the disappeared
persons. The reports of the Working Group are contained in documents
E/CN.4/1992/18/Add.1 and E/cN.4/1993/25/Add.1.
387. The majority of the newly reported cases occurred in 1995 following
the resumption of hostilities in mid-April 1995 and are said to have taken
place mainly in the Batticaloa, Colombo and Trincomalee districts. The
circumstances under which the reported arrests took place are said to conform
to the pattern of disappearances in Sri Lanka in the past and most are said
to have been carried out by the security forces. Four other cases reportedly
occurred in 1994 in Batticaloa, Ploonnaruwa and Colombo.
388. During the course of 1995, information of a general nature was received
by the Working Group from non-governmental organizations. Serious concern was
expressed to the Group about the problem of impunity in Sri Lanka. It was
reported that the Sri Lankan armed forces, in particular in the conflictive
eastern part of the country, are accorded widespread discretionary powers to
deal with the population, and are able to operate with total impunity. It is
said that no member of the armed forces has ever been brought to justice for
the thousands of cases of disappearance.
389. Non-governmental organizations also called for the remains of possible
victims of disappearances to be identified in a scientific manner, in order to
obtain the maximum amount of information available and thus better enable the
identity of the victims to be established.
390. Another matter brought to the attention of the Group concerns the
reported laxities in the implementation of the current Emergency Regulations,
which are said to require an arresting officer to issue an “arrest receipt”
and notify the Human Rights Task Force (HRTF), an independent body set up by
the previous Government to monitor and safeguard the welfare of detainees,
of the arrest “forthwith, and in [ any] case no later than 48 hours”.
Presidential directives, on the other hand, are said to only require that
the HRTF should be informed “as soon as possible and in any case within
four days of such arrest”. It is further reported that the same presidential
directives require the “arrest receipts” to be issued only “upon request”.
391. During the period under review, the Government of Sri Lanka replied
to the allegations sent to it in 1994 and to the questionnaire sent by the
Working Group on the implementation of the Declaration. It also sent a report
published by the Ministry of Foreign Affairs on the human rights situation in
Sri Lanka.
392. With regard to the allegations of a general nature and in reference to
the Sooriyakanda mass graves, the Government stated that the latest excavation
of the graves had been carried out on 14 September 1994 under the supervision
of the High Court and resulted in the discovery of further skeletal remains.
A team of experts from the forensic, investigative and legal fields assisted
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the court in order to ensure a proper and scientific excavation and assist the
further discovery and identification of bodies and the circumstances in which
they were buried at Sooriyakanda.
393. With regard to the abduction of the schoolboys (the so-called
Ambilipitiya abduction case), the Government reported that the
Attorney-General had processed 81 charges against the former headmaster of the
school and 8 soldiers in respect of the disappearance of 26 schoolchildren.
The charges were abduction, abduction with the intention of causing death and
for wrongful confinement.
394. The Government further reported on its decision to establish
three commissions with a mandate to inquire into and report on cases of
disappearances.
395. In response to the Working Group's questionnaire on the implementation
of the Declaration, the Government stated that the Declaration had been made
available to all institutions of the Government, and to the public. In order
to implement the Declaration, three presidential commissions had been
appointed by the President on 26 December 1994 to “probe complaints of
involuntary disappearances” . The Government further said that “all persons
taken into custody under normal law have to be produced before a magistrate
within 24 hours” and that “incommunicado detention is not provided for under
the law of the country” . The Government stated that the “Constitution of
Sri Lanka contains provisions enabling an aggrieved party or his/her counsel
to institute proceedings, to challenge the lawfulness of detention”. In
addition, “independent organizations like the International Committee of the
Red Cross and the Human Rights Task Force are kept informed of arrests and
places of detention” . The Government also said that it maintains an official
up-to-date register of all persons deprived of their liberty in every place of
detention. With regard to safeguards to verify release after detention, the
Government reported that persons are normally released after being produced in
a court of law and the release of detainees is made to a friend/next of kin to
further guarantee the actual release.
396. The report prepared by the Ministry of Foreign Affairs provided
information on measures taken by the Government during 1994 to ensure the
protection and promotion of human rights.
Observations
397. The Working Group remains concerned at the large number of past cases
in Sri Lanka which remain pending, as well as at the increase in new cases
reported to it this year. Notwithstanding the cooperation which the Working
Group has received from the Government, it is alarmed at reports according
to which the previous pattern of systematic disappearances seems to be
re-emerging in Sri Lanka.
398. In particular, the Working Group stresses the obligation of the
Government under article 7 of the Declaration which states that “no
circumstances whatsoever, whether a threat of war, a state of war, internal
political instability or any other public emergency may be invoked to justify
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enforced disappearances”. Furthermore, according to article 13, paragraph 6,
any investigation should be conducted “for as long as the fate of the victim
of enforced disappearance remains unclarified”.
399. Most important, however, is that the Government take effective
legislative, administrative, judicial or other measures to prevent further
acts of enforced disappearance in accordance with article 3 of the
Declaration. For example, accurate information on the detention of such
persons and their place of detention shall be made promptly available to their
family members and an official up-to-date register of all persons deprived of
their liberty shall be maintained in every place of detention, in accordance
with article 10.
Sudan
400. During the period under review, the Working Group transmitted to the
Government of the Sudan 254 newly reported cases of disappearances, 252 of
which reportedly occurred in 1995; two of these cases were transmitted under
the urgent action procedure. During the same period, the Working Group
decided to clarify one case in which it was reported that the person concerned
had been released from detention.
401. The six previously reported cases of disappearances submitted to the
Working Group all occurred during the period since the current Government came
to power in 1989, and have primarily involved former government officials.
402. Two hundred and forty-nine of the 254 newly reported cases concern
villagers who were allegedly abducted from the village of Toror in the Nuba
Mountains on 21 February 1995 by the armed forces of the Government of
the Sudan. It is suspected that the villagers have been taken to one of the
Government-controlled “peace camps” in Umdurien, Agab or Umserdieba, but their
relatives have received no information concerning their whereabouts since
their abduction. Most of the other cases concerned political opponents of the
Government who have been arrested and are believed to have been placed in
incommunicado detention in unknown locations.
403. During the period under review, the Working Group continued to receive
allegations that the Government of the Sudan operates “ghosthouses” throughout
the country where individuals are detained without warrant and held in
incommunicado detention in violation of article 10 of the Declaration.
404. The Working Group also received reports that the Popular Defence
Forces of the Government of the Sudan have abducted women and children in
southern Sudan. These women and children are then reportedly taken to the
north where they are compelled to work as slaves. It is alleged that this
practice is particularly prevalent in western Bahr el Ghazal.
405. It has further been reported to the Working Group that in Khartoum and
other cities in the north, security forces of the Government of the Sudan have
abducted southern Sudanese children off the streets and have placed them in
camps where they are given Arabic names, indoctrinated in Islam and forced to
undergo military training. Although many of these children are orphans who
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are homeless, others have families and are reportedly abducted from their
homes. It is estimated that thousands of children have disappeared in this
manner.
406. During the period under review, no information was received from the
Government of the Sudan with regard to the outstanding cases. As regards
the 250 cases transmitted by the Working Group at its forty-seventh session,
in accordance with its methods of work, it should be understood that the
Government could not have responded in the time available before adoption
of the present report.
Observations
407. The highest number of alleged cases of disappearances reported to the
Working Group to have occurred in 1995 was in the Sudan. The Working Group
expresses particular concern at this considerable increase in 1995 and at
the serious nature of the allegations. In particular, taking into account
paragraph 23 of resolution 1995/38, the Working Group is alarmed at reports
that many of the victims are children and members of ethnic minorities.
408. The Working Group strongly reminds the Government of the Sudan of its
obligations under the Declaration to prevent and terminate all acts of
disappearance and to bring the perpetrators to justice.
Syrian Arab Republic
409. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Syria. Three cases were
retransmitted to the Government, updated with new information from the source.
410. Of the total 35 cases of disappearance reported to the Working Group, 20
have been clarified. Among the 15 outstanding cases, a substantial number
allegedly occurred throughout the country in the early to mid-1980s. Some of
the persons concerned were allegedly members of terrorist groups; others were
reportedly members of the military or civilians.
411. During the period under review, the Government of the Syrian Arab
Republic provided information on six cases: in two cases, the persons
concerned had been sentenced to death and executed, in one case the person was
sentenced to life imprisonment and was in detention, in one case the person
had died in detention and a death certificate was provided, and the two other
persons were reported to have left the country.
Taj ikistan
412. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Tajikistan.
413. All of the six cases of disappearance reported to the Working Group were
alleged to have occurred between late 1992 and July 1993 in the context of the
escalating civil war when pro-Government forces took over the capital of
Dushanbe.
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414. Although a reminder was sent, no information has been received by the
Working Group from the Government of Tajikistan. The Working Group is,
therefore, unable to report on the fate and whereabouts of the disappeared
persons.
Thailand
415. During the period under review, no new cases of disappearances were
transmitted by the Working Group to the Government of Thailand. At its
forty-fifth session the Working Group decided to delete the two outstanding
cases from its files since the source informed the Working Group that contact
could no longer be established with the families, a prerequisite of the
Working Group, and therefore no follow-up could be given to the cases. These
cases involved two refugees from Myanmar who were allegedly arrested by the
authorities on 22 May 1992 in the city of Ranong on suspicion of being illegal
immigrants.
416. During the period under review, the Government of Thailand replied
to a request from the Working Group for additional information on the
two outstanding cases, stating that after time-consuming and exhaustive
investigations carried out by both the police department and the provincial
authorities of the Province of Ranong, the Ministry of the Interior of
Thailand confirmed that there had been no arrests of Myanmar nationals with
such names in Ranong on 22 May 1992.
417. The Government also submitted a reply to the Working Group's letter,
sent in 1994, on the implementation of the Declaration. In its reply the
Government stated that there was no specific law outlining measures to prevent
acts of enforced disappearance as such. However, provisions of the Penal
Code, which deal with of fences against liberty of person, could be applied to
cases of enforced disappearance. If public officials are found to be involved
in such cases, a provision of the Penal Code that relates to penalties imposed
on public officials for failing in their duties or dishonestly exercising
their authority may be applied. Moreover, the Civil and Commercial Code
provides for the exercising of victims' right to adequate compensation. The
reply also provided information on (a) the time-frame within which persons
deprived of their liberty must be brought before a judicial authority; (b) the
detained person's right to challenge the lawfulness of his or her detention;
(c) the duty of the Public Prosecutor and prison authorities to ensure
protection of a detained person against illegal detention or detention
contrary to the court ruling; and (d) officials who are authorized to issue
an order to detain a person.
Togo
418. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Togo.
419. Six of the 10 outstanding cases concern persons who were reportedly
detained in 1994 by members of the armed forces at Adetikope as they were
on their way to Lomé to visit 2 relatives of the Secretary-General of the
Togolese Drivers' Trade Union, who had reportedly been injured in a car
accident. One other case concerned a civil servant who was reportedly the
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adviser to the President of the High Council of the Republic between 1991
and 1993 and who is said to have been abducted from his car in the Lomé suburb
of Aguényié and taken to an unknown destination by three men in a minibus,
followed by a military vehicle.
420. The other victims were a man arrested by the police and taken to the
Central Commissariat in Lomé, from where he disappeared a few days later; a
farmer abducted from his home by armed men and taken to an unknown
destination; and a businessman abducted from his home by five men in military
fatigues.
421. During the period under review, the Government of Togo provided
information on nine cases, in which it reported that the Ministries of Justice
and Defence, as well as the General Directorate of the National Police, had
been requested to undertake investigations to determine the whereabouts of the
persons reported disappeared. Although they have still not been able to
locate the persons concerned, the investigations into the disappearances were
continuing.
422. The Government further stated that the disappearances had occurred during
the period of democratic transition, which was marked by a general climate of
insecurity. It reported that when the present Government took office in
June 1994, it took measures to restore confidence and combat insecurity, as
well as to strengthen the protection of human rights. It further reported
that in order to encourage national reconciliation, the National Assembly
adopted an amnesty law on 15 December 1994 which led to the freeing of all
those arrested or prosecuted for offences of a political nature, and brought
to an end all legal proceedings against those presumed responsible for
offences of the same kind. The Government assured the Working Group of its
continued willingness to cooperate with the Group.
Turkey
423. During the period under review, the Working Group transmitted 17 newly
reported cases of disappearances to the Government of Turkey, of
which nine reportedly occurred in 1995. All except three of the newly
reported cases were transmitted under the urgent action procedure. During the
same period, a total of 20 cases were clarified by the Working Group and four
other cases were retransmitted to the Government.
424. On 4 April 1995, the Representative of the Secretary-General on
internally displaced persons, the Chairman of the Working Group on Arbitrary
Detention, the Special Rapporteur on extrajudicial, summary or arbitrary
executions, the Special Rapporteur on torture and the Chairman of the
Working Group on Enforced or Involuntary Disappearances sent an urgent appeal
to the Government, in which they requested the Turkish authorities to take all
the necessary measures to ensure, in conformity with international human
rights and humanitarian law, the rights, among others, to life and physical
and mental integrity of Turkish and Iraqi civilians of Kurdish ethnic origin,
after Turkish armed troops entered the territory of northern Iraq. By note
verbale dated 6 April 1995, the Permanent Mission of Turkey to the
United Nations Office at Geneva declared that “United Nations human rights
mechanisms created under resolutions of recommendatory character should not
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attempt to encroach upon the field of international humanitarian law” . In
response, on 10 May 1995, the signatories of the urgent appeal sent a new
communication to the Government, stating the reasons why humanitarian
law fell within the purview of their mandates. Another note verbale
dated 16 June 1995, was received from the Government of Turkey, confirming
its views as to the distinction between international human rights law and
humanitarian law.
425. Of the total number of 132 reported cases of disappearance transmitted to
the Government by the Working Group since 1990, the highest number of cases
occurred in 1994. Despite the fact that there has been a decrease in the
number of reported disappearances compared with 1994, enforced or involuntary
disappearances continue to occur, particularly in the context of clashes
between the Kurdish Workers' Party (PKK) guerrilla movement and government
security forces. South-east Turkey, where a state of emergency exists,
remains the most affected region. Some of the disappearances allegedly
occurred during raids conducted by gendarmes accompanied, at times, by village
guards, a civil defence corps reportedly armed and paid by the Government to
fight the PKK guerrillas. In some cases, the persons were members of
political opposition parties or journalists for newspapers opposed to the
Government.
426. The majority of the 17 newly reported cases transmitted to the Government
during the period under review concerns persons of Kurdish ethnic origin.
Victims included several villagers suspected of supporting the PKK, Kurdish
political leaders, a journalist, correspondent of the Ozgur Ulke , and a trade
unionist. In one particular case the missing person was the son of a leading
Kurdish intellectual. In most cases, the persons concerned had reportedly
been detained during military raids on their villages, in the street while
going to or coming from work, or in their own homes. The forces alleged to be
responsible for the disappearances include security forces, police officers
and members of the anti-terror branch of the police. In certain cases,
despite the reported refusal of the authorities to confirm the subject's
detention, witnesses were reported to have seen or heard the person in prison.
In one case, in which the Government is said to have refused to confirm the
subject's arrest, a picture appeared in a newspaper in Turkey showing him
blindfolded and wounded. In accordance with the Group's methods of work,
three of the cases were transmitted to the Special Rapporteur on
extrajudicial, summary or arbitrary executions.
427. In addition to the individual cases of disappearance, the Working Group
continued to receive information according to which violations of the most
fundamental rights still occur in Turkey. Specific emphasis was made of the
use of article 8 of the Anti-Terror Law to criminalize non-violent political
opinion. It has been alleged that with the intention of fighting the PKK,
harassment and attacks are being committed against those suspected of having
links with the PKK and activists who fight for Kurdish self-determination.
Serious concern was expressed that in the conflict between the Government and
the PKK, civilians not directly involved in combat are becoming targets of
human rights violations by both the Turkish security forces and the PKK
guerrillas.
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428. It has been further alleged that the existence of a state of emergency
is a major obstacle to the implementation of the Declaration. The
establishment of a state of emergency, currently in force in 10 provinces in
south-east Turkey, has reportedly led to the excessive concentration of power
in the hands of the authorities. Impunity is said to be another factor in the
continuation of violations of human rights in Turkey. Reportedly, although
members of the security forces are mentioned to be responsible for most
enforced disappearances, they are said never to be brought to trial or
prosecuted for these acts. Furthermore, it has been alleged that abuse of
registration procedures, laid down in the Turkish Code of Criminal Procedure,
for the prompt and appropriate registration of detainees and notification to
their families are disregarded in the south-eastern provinces.
429. During the period under review, the Government of Turkey provided a
number of replies on individual cases, and information of a more general
nature. By letter dated 20 December 1994, the Government provided
information about measures taken to implement the Declaration. By letter
dated 29 March 1995, the Government provided comments regarding the Group's
previous report to the Commission on Human Rights. According to the
Government, Turkey was highlighted as the country with the highest number of
disappearances in 1994 on the basis of allegations received from sources, but
no comment on the credibility of the sources was made. The Turkish Government
considers that this situation gives rise to a distorted view and leads to
unfair conclusions. In addition, the Government stated that all the necessary
procedures to ensure respect for the personal liberty and integrity of
detainees, including proper registration and prompt notification, are in
place. The Government further referred to the terrorist campaign against
Turkey waged by the PKK. In addition, by letter dated 3 November 1995,
information was provided regarding the amendments brought by the Turkish Grand
National Assembly to article 8 of the Anti-Terror Law.
430. The Government of Turkey furthermore provided information on
terrorism, including a non-exhaustive compilation of the attacks
perpetrated by the PKK organization in Turkey during 1994. Moreover, by
letter dated 5 September 1995 a booklet entitled “Realities of Turkey for the
West” was transmitted to the Working Group.
431. During the same period, the Government provided information with regard
to 17 individual cases. In five cases the Government replied that there were
no records of the detention or arrest of the disappeared person, while in six
other cases the persons had already been released. In two cases, the
Government stated that subject had been found dead and in another case, that
an inquiry was being conducted. Three other persons were reportedly in
detention and awaiting trial.
432. The Government of Turkey has not yet replied to the Working Group's
request for a visit.
Observations
433. The Working Group continues to be concerned at the high number of recent
cases of disappearances brought to its attention. It reminds the Government
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of Turkey again of its responsibilities under the Declaration to prevent and
terminate all acts of enforced disappearance and to bring the perpetrators to
justice.
434. While the Working Group welcomes the cooperation of the Government, it
wishes to state clearly that under article 7 of the Declaration, “no
circumstances whatsoever, whether a threat of war, a state of war, internal
political instability or any other public emergency, may be invoked to justify
enforced disappearances”
435. With respect to the Government's comments on the Working Group's last
annual report concerning the credibility of the sources, the Working Group
stresses that under its methods of work all allegations which contain certain
minimum requirements are transmitted to the Government concerned. The
Working Group is not in a position to make a value judgement on the source of
information.
Turkmenistan
436. During the period under review, the Working Group transmitted, for the
first time, two cases of disappearance to the Government of Turkmenistan,
which reportedly occurred in 1995 and were sent under the urgent action
procedure. The cases concerned two journalists who were allegedly taken from
their home by government agents in the days following the sweep of arrests of
individuals who participated or were believed to have participated in a
peaceful public demonstration held in the capital, Ashghabad, in July 1995.
437. At the time of the adoption of the present report, the Working Group had
not received any information from the Government of Turkmenistan with regard
to these cases. The Working Group is, therefore, unable to report on the fate
and whereabouts of the disappeared persons.
Uganda
438. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Uganda.
439. All of the 20 reported cases of disappearance occurred between 1981
and 1985, i.e. before the present Government took office. The reported
arrests or abductions occurred throughout the country and in one case the
person was allegedly abducted while in exile in Kenya and taken to Kampala.
One case concerned the 18-year-old daughter of an opposition member of the
Ugandan Parliament. The arrests are said to have been made by either
policemen, soldiers or officials of the National Security Agency.
440. During the period under review, the Government of Uganda requested an
explanation concerning 13 cases on which it had previously provided
information. The Working Group communicated to it that the information
provided had been considered insufficient to clarify the cases in question,
and recalled that the Group had requested more precise information from the
Government, which it had not yet received.
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441. During the period under review, the Government of Uganda replied to the
questionnaire sent by the Working Group in 1994 on the implementation of the
Declaration in which it stated that it had forwarded copies of the
declaration to the Ministry of Justice, the Commissioner for Prisons, the
Inspector-General of Police, the Inspector-General of Government and the
courts of law. In its reply, the Government said that there was no provision
for incommunicado detention in practice in Uganda and that “article 1040 of
the Constitution gives the right to institute proceedings against Government
by any person who wants to challenge the lawfulness of his or her detention
and claim compensations”. Furthermore, the Government's reply said that
“information on the lawful detention of persons and their places of detention
are promptly available to their family members and counsel and that an
up-to-date official register of all persons deprived of their liberty in every
place of detention is maintained by the authorities”. With respect to arrest
procedures, the Government said that the Uganda Code of Criminal Procedure
gives and regulates powers of arrest to police officers and the Magistrates
Courts Act contains provisions regulating arrest and search warrants.
Uruguay
442. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Uruguay.
443. The majority of the 39 cases of disappearance reported to the
Working Group occurred between the years 1975 and 1978 under the military
Government, in the context of its fight against alleged subversion. It should
be noted that the Working Group has received no reports of disappearance in
Uruguay after 1982.
444. On 10 May 1995, the Government of Uruguay informed the Working Group that
it had undertaken steps with the Government of Argentina with a view to
obtaining information which would permit it to resolve the four outstanding
cases of Uruguayan citizens who had disappeared in Argentina.
Uzbekistan
445. During the period under review, the Working Group transmitted two newly
reported cases of disappearance to the Government of Uzbekistan, which
reportedly occurred in 1995 and was sent under the urgent action procedure.
The cases concerned an Islamic religious leader and his assistant who were
reportedly detained by the National Security Service in Tashkent as they were
waiting to board an international flight.
446. The one other outstanding case transmitted in the past concerned the
disappearance of the leader of the Islamic Renaissance Party, reportedly an
unregistered political party, who was allegedly arrested in 1992 by men
believed to be government agents.
447. In 1995, no new information was received from the Government of
Uzbekistan with regard to the outstanding cases. The Working Group is,
therefore, unable to report on the fate and whereabouts of the disappeared
persons.
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Venezuela
448. During the period under review, the Working Group transmitted two newly
reported cases of disappearance to the Government of Venezuela, one of which
reportedly occurred in 1995 and was sent under the urgent action procedure.
449. of the ten cases reported to the Working Group, four have been clarified.
Three of the six outstanding cases occurred in December 1991 and concern
student leaders who had reportedly been intercepted by security forces during
a commercial fishing expedition. A fourth case concerned a businessman
arrested in February 1991 in Valencia City, Carabobo, by the police.
450. Of the newly reported cases, one concerns a person who was allegedly
detained at the end of February 1995 in the vicinity of Puerto Ayacucho,
capital of the State of Amazonas, by members of the Navy Infantry, following
incidents in which eight Venezuelan soldiers were reportedly ambushed and
killed by Colombian guerrillas. The other concerns a 14-year-old girl who was
allegedly abducted in March 1993 following a military raid on her house in the
peasant community of S de Julio, municipality of Catatumbo, State of Zulia.
451. During the period under review, the Government of Venezuela provided the
Working Group with information concerning the two newly reported cases. With
regard to the case of the person detained in the vicinity of Puerto Ayacucho,
the Government reported that a military court had ordered the detention of a
naval lieutenant, a first class sergeant and two second class corporals for
their presumed responsibility in the possible violation of human rights of
inhabitants of the region affected by subversive action on the part of
Colombian Brigands. It added that the proper functioning of the Venezuelan
public institutions enables the investigation of any complaint of human rights
violations. With regard to the disappearance of the 14-year-old girl, the
Government reported that the brother of this person had stated before
General Attorney No. 22 of the State of Zulia that his sister is currently
living in liberty in Colombia.
Yemen
452. During the period under review, no new cases of disappearances were
transmitted by the Working Group to the Government of Yemen.
453. The majority of the 98 cases transmitted to the Government in the past
occurred between January and April 1986 in the context of the fighting which
took place during this time between supporters of President Ali Nasser
Muhammad and his opponents. The President subsequently fled the country and
his opponents took power. In the aftermath of the fighting, several suspected
supporters of the former President were reportedly arrested and subsequently
disappeared. The persons concerned are said to have been arrested either
during the fighting on 13 January 1986 or in the period thereafter, between
January and April 1986. The majority of the victims were members of the
air force, the army or the security forces, but there were also civilians.
Most of them were members of the Yemen Socialist Party. The forces said to be
responsible for their arrest include the State security forces, the air force
and the people's militia. One other case concerned the President of the
Engineers' Union who was also said to be a member of the Central Committee of
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the Yemen Socialist Party and who reportedly disappeared in August 1994. This
case was clarified in 1994 when the person concerned was reported to have been
released.
454. At its forty-sixth session, a representative from the Permanent
Mission of Yemen to the United Nations Office at Geneva met with the
Working Group and confirmed the willingness of his Government to cooperate
with the Group. He said that his country attached a great deal of importance
to the 97 outstanding cases of disappearance in Yemen. The Government
understood the anguish of the family members and was aware of the social and
humanitarian implications families of the disappeared have to deal with. In
this regard the representative informed the Working Group that his Government
had taken several measures to alleviate the suffering of individual families,
such as providing them with financial assistance and subsidies.
Zaire
455. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Zaire.
456. The majority of the 24 reported cases of disappearance occurred
between 1975 and 1985 and concerned persons suspected of being members of a
guerrilla group known as the Parti de la revolution populaire or of being
political activists. More recent cases concern a journalist who was allegedly
abducted from his home in 1993 by members of the Division spéciale
présidentielle and the civil guard, and interrogated on the premises of the
State radio station, Voix du Zaire, and four men who were allegedly arrested
in Likasi by soldiers and detained for almost two months before being
transferred to Kinshasa; since then their whereabouts have remained unknown.
Zimbabwe
457. During the period under review, no new cases of disappearance were
transmitted by the Working Group to the Government of Zimbabwe.
458. The one outstanding case occurred in 1985 in the context of the armed
conflict between government forces and political opponents in Matabeleland.
It concerned a member of the Zapu political party who was reportedly arrested
by four men (two of them in police uniform) while attending a church service
and taken away in a police vehicle.
459. During the period under review, the Government provided information on
the one case of disappearance in which it stated that, pursuant to the signing
of the unity accord in 1987, it had decided to compensate all families with
missing relatives, regardless of whether there were court proceedings
concerning the circumstances of the disappearance. The subject's family was
therefore awarded compensation and his case had been settled through the High
Court. It further stated that since his disappearance occurred during the
armed conflict, it was impossible to carry out an investigation as no
documents had been kept from this period.
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III. COUNTRIES IN WHICH ALL REPORTED CASES
OF DISAPPEARANCE HAVE BEEN CLARIFIED
Bahrain
460. During the period under review, the Working Group transmitted, for the
first time, one case of disappearance to the Government of Bahrain, which
reportedly occurred in 1995 and was transmitted under the urgent action
procedure. During the same period, the Working Group clarified this case when
the source informed it of the specific location at which the person concerned
was being held.
461. The newly reported case concerned a former judge, writer, religious
scholar and, until its dissolution in 1975, a member of Parliament. The
person concerned is said to have been one of six people who submitted a
petition in 1992 calling on the Amir to reinstate the dissolved Parliament.
Reportedly, the subject and his family had been placed under house arrest
from 1 to 15 April 1995. Although the house arrest on his family was lifted
the subject was taken into detention.
462. On 9 May 1995, the Government of Bahrain provided information on this
case in which it reported that the person concerned was being held in a secure
location, had been properly treated and was regularly attended by independent
experts. The Working Group considered that this reply was insufficient to
clarify the case, as it did not specify the exact place in which the person
was being held.
Nigeria
463. During the period under review, the Working Group transmitted two newly
reported cases of disappearance to the Government of Nigeria, both of which
reportedly occurred in 1995 and were sent under the urgent action procedure.
The cases concerned two journalists who were detained by security forces,
possibly because of reports in their publications of an alleged coup d'etat
attempt. During the same period, on the basis of information submitted by the
Government and subsequently confirmed by the source, in which it was reported
that the persons concerned had been released, the Working Group decided to
consider the two cases clarified.
E/cN. 4/1996/38
page 87
IV. CONCLUSIONS AND RECOMMENDATIONS
464. Every single act of enforced disappearance is an offence to human
dignity. It causes immense suffering to the victims, who are placed outside
the protection of the law, kept ignorant of their fate, frequently tortured
and constantly fearing for their lives. And it victimizes the family members
who do not know whether their loved ones are still alive, and who often wait
for many years, in a state alternating between hope and despair, without
receiving any news.
465. The systematic practice of acts of enforced disappearance is of the
nature of a crime against humanity. In addition to the revival of systematic
torture and genocide, the practice of enforced disappearances is one of the
most heinous “contributions” of human beings to the twentieth century, which
is often referred to as the most violent in history.
466. The systematic practice of acts of enforced disappearance became known in
the early 1970s as a phenomenon prevalent in a relatively small number of
military dictatorships, above all in Latin America. Since then, it has spread
to all regions of the world. Today, unfortunately, it must be considered a
worldwide phenomenon, occurring primarily in the context of internal armed
conflict and ethnic strife.
467. From its inception in 1980, the Working Group has dealt with
some 50,000 individual cases pertaining to more than 70 countries. Only a
very small fraction of these cases have been clarified, and the number of
outstanding cases increases every year.
468. In recent years, enforced disappearances have occurred preponderantly in
situations of social or ethnic tension or of internal armed conflict. In such
circumstances, disappearances happen as a result of acts by security forces,
or by groups or individuals with their support or acquiescence. In certain
countries, responsibility for internal tension or social strife is borne by
insurgent or terrorist groups, which generate a climate conducive to the
breakdown of the institutional framework, to the militarization of society, to
the weakening of the rule of law and human rights violations, including
enforced disappearances. The Working Group recalls that under article 7 of
the Declaration, “no circumstances whatsoever, whether a threat of war, a
state of war, internal political instability or any other public emergency,
may be invoked to justify enforced disappearances”
469. Bearing in mind that, when applicable, international humanitarian law is
an important instrument in alleviating suffering and diminishing abuses and
human rights violations, the resolution of such conflicts and tensions is
undoubtedly the best response to disappearances. In this context, the
international community must contribute with its good offices to finding and
implementing political settlements to such situations of conflict. Peace
creates an appropriate environment for the enjoyment of human rights and for
the clarification of pending cases. In connection with the role of the
international community, the Working Group wishes to draw the Commission's
attention to the relevance of human rights components of peace-keeping
operations. Some of these operations, such as in Cambodia and El Salvador,
have contained a strong human rights verification component that has
E/CN. 4/1996/38
page 88
contributed to a considerable improvement in the human rights situation in
those countries, including the strengthening and/or reform of national
institutions such as the police, the army, the judiciary and national human
rights institutions such as the Ombudsman. In the case of El Salvador, among
other positive effects, no more cases of enforced disappearances have been
verified in the last few years.
470. The Working Group is happy to note that more and more Governments are
coming forward to cooperate with it in its attempts to deal effectively with
the problem. It is the hope of the Working Group that such cooperation is a
reflection of those Governments' rejection of the practice and their genuine
determination to ensure that it no longer takes place within the territories
under their control.
471. It is essential that the Working Group emphasize that cases of
disappearance cannot be considered clarified until the whereabouts of the
victims are known, whether or not they are still alive. The Working Group
appreciates that a good number of cases occur in situations of conflict or war
but it cannot, for that reason, consider a particular case clarified until the
Government concerned reveals what may have happened to the victim, to the
satisfaction of the families or relatives. In this connection, the
Working Group considers the recent steps taken in this direction by the
Government of Brazil as a very positive development.
472. The Commission is, therefore, faced with the urgent task of not only
adopting effective preventive measures to ensure that all members of the
international community ultimately refrain from indulging in the use of
enforced or involuntary disappearances as an instrument of policy, but also of
guaranteeing that the functions and responsibilities of the Working Group are
well understood by them. In this connection, one cannot ignore the fact that
a few Governments have established structures and mechanisms aimed at
preventing the occurrence of involuntary disappearances in their countries and
at clarifying already existing cases in conformity with the directives issued
by the Working Group. The Group encourages other Governments to emulate these
examples and also requests the Commission to do whatever it can towards that
end. In this context, efforts to implement institutions such as the Ombudsman
are especially relevant and deserve the full support of the international
community. The Working Group would like to mention in particular the
activities carried out by the National Commission for Human Rights of Mexico
as a good example.
473. In addition to assisting family members and Governments in clarifying
individual cases of disappearances, the Working Group in recent years, on
instructions from the Commission, assumed the main responsibility for
monitoring States' compliance with their obligations under the Declaration on
the Protection of All Persons from Enforced Disappearance, adopted by the
General Assembly on 18 December 1992. Progress in the domestic implementation
of the Declaration seems, however, to be extremely slow. Only very few
countries, such as Colombia, Guatemala, Peru and Mexico, enacted special
legislation in order to make the act of enforced disappearance a specific
offence under criminal law and to implement other provisions. Most
Governments seem not to be fully aware of their responsibilities under the
Declaration. With a view to making the Declaration better known and to draw
E/cN. 4/1996/38
page 89
Governments' attention to their responsibilities, the Working Group has begun
to adopt general comments on specific provisions of the Declaration.
474. The cooperation which the Working Group enjoys from non-governmental
human rights organizations concerned with the problem of disappearances is
essential to its activities. These organizations have proved to be the
conscience of the world community and their activities, far from being met
with reprisals or condemnations, deserve the support of all concerned. It is
the earnest hope of the Working Group that not only will such support and help
be forthcoming from all sides, but also that more and more of these
organizations will emerge in every country so that, assisted by them, the
international community will soon be able to put behind it the problem of
enforced or involuntary disappearances.
475. Finally, the Working Group wishes again to express its sincere gratitude
and appreciation to its secretariat for its dedication in the pursuance of the
very difficult tasks it has to deal with, while constantly in urgent need of
additional resources. The Group avails itself of this opportunity to address
another urgent call to the Commission in the hope that, with its deep
understanding of the situation, it will meet the desperate needs of the
secretariat by allocating more resources to it.
E/CN. 4/1996/38
page 90
V. ADOPTION OF THE REPORT
476. At the last meeting of its forty-fourth session, on 17 November 1995, the
present report was adopted by the members of the Working Group on Enforced or
Involuntary Disappearances:
Ivan Tosevski (the former Yugoslav Republic of Macedonia)
Chairman-Rapporteur
Agha Hilaly (Pakistan)
Jonas K.D. Foli (Ghana)
Diego Garcia-Saymn (Peru)
Manf red Nowak (Austria)
E/cN. 4/1996/38
page 91
Jthnex I
METHODS OF WORK
Revision 2
1. The Working Group's methods of work are based on its mandate as
stipulated originally in Commission on Human Rights resolution 20 (XXXVI) and
as developed by the Commission in numerous further resolutions. The
parameters of its work are laid down in the Charter of the United Nations, the
International Bill of Human Rights, Economic and Social Council
resolution 1235 (XLI) and the Declaration on the Protection of All Persons
from Enforced Disappearance, adopted by the General Assembly in its
resolution 47/133 of 18 December 1992, (hereinafter referred to as the
“Declaration”)
2. As defined in the preambular part of resolution 47/133, enforced
disappearances occur when “persons are arrested, detained or abducted against
their will or otherwise deprived of their liberty by officials of different
branches or levels of Government or by organized groups or private individuals
acting on behalf of, or with the support, direct or indirect, consent or
acquiescence of the Government, followed by a refusal to disclose the fate or
whereabouts of the persons concerned or a refusal to acknowledge the
deprivation of their liberty, which places such persons outside the protection
of the law”
3. The basic mandate of the Working Group is to assist families in
determining the fate and whereabouts of their missing relatives who, having
disappeared, are placed outside the protection of the law. To this end, the
Working Group endeavours to establish a channel of communication between the
families and the Governments concerned, with a view to ensuring that
sufficiently documented and clearly identified individual cases which
families, directly or indirectly, have brought to the Group's attention, are
investigated and the whereabouts of the disappeared persons are clearly
established as a result of investigations by the Government or the search of
the family, irrespective of whether the person is alive or dead.
4. In addition to its original mandate, the Working Group has been entrusted
by the Commission with various other tasks. In particular, the Working Group
is to monitor States' compliance with their obligations deriving from the
Declaration on the Protection of All Persons from Enforced Disappearance.
States are under an obligation to take effective measures to prevent and
terminate acts of enforced disappearance, by making them continuing offences
under criminal law and establishing civil liability of those responsible. The
Declaration also refers to the right to a prompt and effective judicial
remedy, as well as unhampered access of national authorities to all places of
detention, the right to habeas corpus, the maintenance of centralized
registers of all places of detention, the duty to investigate fully all
alleged cases of disappearance, the duty to try alleged perpetrators of acts
of disappearance before ordinary (not military) courts, the exemption of the
criminal offence of acts of enforced disappearance from statutes of
limitations, special amnesty laws and similar measures leading to impunity.
The Working Group reminds the Governments of these obligations not only in the
E/CN. 4/1996/38
page 92
context of clarifying individual cases but also that of taking action of a
more general nature. It draws the attention of Governments and
non-governmental organizations to general or specific aspects of the
Declaration, it recommends ways of overcoming obstacles to the realization of
the Declaration; it discusses with representatives of Governments and
non-governmental organizations how to solve specific problems in the light of
the Declaration, it assists Governments by carrying out on-the-spot visits,
organizing seminars and providing similar advisory services.
S. The Working Group does not deal with situations of international armed
conflict, in view of the competence of the International Committee of the Red
Cross (ICRC) in such situations, as established by the Geneva Conventions of
12 August 1949 and the Protocols additional thereto.
6. In transmitting cases of disappearance, the Working Group deals
exclusively with Governments, basing itself on the principle that Governments
must assume responsibility for any violation of human rights on their
territory. Where, however, disappearances have been attributed to terrorist
or insurgent movements fighting the Government on its own territory, the
Working Group has refrained from processing them. The Group considers that,
as a matter of principle, such groups may not be approached with a view to
investigating or clarifying disappearances for which they are held
responsible.
7. Reports on disappearances are considered admissible by the Working Group
when they originate from the family or friends of the missing person. Such
reports may, however, be channelled to the Working Group through
representatives of the family, Governments, intergovernmental organizations,
non-governmental organizations and other reliable sources. They must be
submitted in writing with a clear indication of the identity of the sender; if
the source is other than a family member it must be in a position to follow up
with the relatives of the disappeared person concerning his fate.
8. In order to enable Governments to carry out meaningful investigations,
the Working Group provides them with information containing at least a minimum
of basic data. In addition, the Working Group constantly urges the senders of
reports to furnish as many details as possible concerning the identity of the
disappeared person and the circumstances of the disappearance. The Group
requires the following minimum elements:
(a) Full name of the missing person;
(b) Date of disappearance, i.e., day, month and year of arrest or
abduction, or day, month and year when the disappeared person was last seen.
When the disappeared person was last seen in a detention centre, an
approximate indication is sufficient (for example, March or spring 1990)
(c) Place of arrest or abduction or where the disappeared person was
last seen (indication of town or village, at least)
(d) Parties presumed to have carried out the arrest or abduction or to
be holding the disappeared person in unacknowledged detention;
E/cN. 4/1996/38
page 93
(e) Steps taken by the family to determine the fate or whereabouts of
the disappeared person or at least an indication that efforts to resort to
domestic remedies were frustrated or have otherwise been inconclusive.
9. In the case of the disappearance of a pregnant woman, the child presumed
to have been born during the mother's captivity would be mentioned in the
description of the case of the mother. The child would be treated as a
separate case when witnesses reported that the mother had actually given birth
to a child during detention.
10. Reported cases of disappearances are placed before the Working Group for
detailed examination during its sessions. Those which fulfil the requirements
outlined above are transmitted, upon the Group's specific authorization, to
the Governments concerned with the request that they carry out investigations
and inform the Group about the results. These cases are communicated by
letter from the Group's Chairman to the Government concerned through the
Permanent Representative to the United Nations.
11. Cases that occurred within the three months preceding receipt of the
report by the Group are transmitted directly to the Minister for Foreign
Affairs of the country concerned by the most direct and rapid means. Their
transmission can be authorized by the Chairman on the basis of a specific
delegation of power given to him by the Group. Cases which occurred prior to
the three-month limit but not more than one year before the date of their
receipt by the Secretariat, provided that they had some connection with a case
which occurred within the three-month period, can be transmitted between
sessions by letter, upon authorization by the Chairman.
12. Reports on a disappearance indicating that officials from more than one
country were directly responsible for or involved in the disappearance would
be communicated to both the Government of the country where the disappearance
occurred and the Government of the country whose officials or agents were
alleged to have participated in the arrest or the abduction of the disappeared
person. However, the case would only be counted in the statistics of the
country in which the person was reportedly arrested, detained, abducted or
last seen.
13. The Working Group reminds every Government concerned, at least once a
year, of the cases which have not yet been clarified and, twice a year, of all
urgent action cases transmitted during the preceding six months for which no
clarification has been received. Furthermore, at any time during the year any
Government may request, in writing, the summaries of cases that the Group has
transmitted to it.
14. All replies received from Governments concerning reports of
disappearances are examined by the Working Group and summarized in the Group's
annual report to the Commission on Human Rights. Any information given on
specific cases is forwarded to the senders of those reports, who are invited
to make observations thereon or to provide additional details on the cases.
15. Any reply of the Government containing detailed information on the fate
and whereabouts of a disappeared person is transmitted to the source. If the
source does not respond within six months of the date on which the
E/CN. 4/1996/38
page 94
Government's reply was communicated to it, or if it contests the Government's
information on grounds which are considered unreasonable by the Working Group,
the case is considered clarified and is accordingly listed under the heading
“Cases clarified by the Government's responses” in the statistical summary of
the annual report. If the source contests the Government's information on
reasonable grounds, the Government is so informed and invited to comment.
16. The Working Group may consider a case clarified when the competent
authority specified in the relevant national law pronounces, with the
concurrence of the relatives and other interested parties, on the presumption
of death of a person reported missing.
17. If a case is considered clarified but contains information relevant to
other thematic mechanisms of the Commission, it is transmitted to the
mechanism concerned.
18. If the sources provide well-documented information that a case has been
considered clarified erroneously, because the Government's reply referred to a
different person, does not correspond to the reported situation or has not
reached the source within the six-month period referred to above, the Working
Group transmits the case to the Government anew, requesting it to comment. In
such instances the case in question is again listed among the outstanding
cases and a specific explanation is given in the Group's report to the
Commission on Human Rights, describing the above-mentioned errors or
discrepancies.
19. Any substantive additional information which the sources submit on an
outstanding case is placed before the Working Group and, following its
approval, transmitted to the Government concerned. If the additional
information received amounts to a clarification of the case, the Government is
informed immediately without awaiting the Group's next session.
Clarifications by the source are listed in the statistical summary under the
heading “Cases clarified by non-governmental sources”.
20. In exceptional circumstances, the Working Group may decide to delete from
its files cases in which the families have manifested their desire not to
pursue the case any further, or cases in which the source is no longer in
existence or unable to follow-up the case.
21. The Working Group retains cases on its files for as long as the exact
whereabouts of the disappeared persons have not been determined, in accordance
with the criteria outlined in paragraphs 13 to 19 above. This principle is
not affected by changes of Government in a given country.
22. The Working Group regularly transmits to the Governments concerned a
summary of allegations received from relatives of missing persons and
non-governmental organizations with regard to obstacles encountered in the
implementation of the Declaration in their respective countries, inviting them
to comment thereon if they so wish.
23. The Working Group carries out visits to countries on invitation, but also
takes the initiative of approaching Governments with a view to carrying out
visits to countries with a sizeable number of cases of disappearance. Such
E/cN. 4/1996/38
page 95
visits are intended to enhance the dialogue between the authorities most
directly concerned, the families or their representatives and the Working
Group, and to assist in the clarification of the reported disappearances. The
Working Group reports to the Commission on its country visits in an addendum
to its annual report.
24. With regard to countries in which visits have been carried out, the
Working Group periodically reminds Governments concerned of the observations
and recommendations formulated in the respective reports, requesting
information on the consideration given to them, and the steps taken for their
implementation or the constraints which might have prevented their
implementation.
25. Cases of intimidation, persecution or reprisals against relatives of
missing persons, witnesses to disappearances or their families, members of
organizations of relatives and other non-governmental organizations or
individuals concerned with disappearances are transmitted to the pertinent
Governments, with the appeal that they take steps to protect all the
fundamental rights of the persons affected. Cases of that nature, which
require prompt intervention, are transmitted directly to the Ministers for
Foreign Affairs by the most direct and rapid means. To that end, the Working
Group has authorized its Chairman to transmit such cases between sessions.
26. The Working Group meets three times a year to consider the information
brought to its attention since its previous session. Its meetings are held in
private. However, the Working Group regularly invites representatives of
Governments, non-governmental organizations, family members and witnesses to
meet with it.
27. The Working Group reports annually to the Commission on Human Rights on
the activities which it has carried out since the Commission's previous
session, up until the last day of the Working Group's third annual session.
It informs the Commission of its communications with Governments and
non-governmental organizations, its meetings and missions. Reports on
missions are contained as an addendum to the main report. The Working Group
reports on all cases of disappearance received by the Group during the year,
on a country-by-country basis, and on the decisions it has taken thereon. It
provides the Commission with a statistical summary for each country of cases
transmitted to the Government, clarifications and the status of the person
concerned on the date of clarification. It includes graphs showing the
development of disappearances in countries with more than 50 transmitted
cases, up to the date of the adoption by the Working Group of its annual
report. The Working Group includes conclusions and recommendations in its
report, and makes observations on the situation of disappearances in
individual countries. The Group further reports on the implementation of the
Declaration and the obstacles encountered therein, and periodically reports on
broader issues surrounding the phenomenon of disappearances.
LII
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DECISIONS ON INDIVIDUAL CASES TAKEN BY THE WORKING GROUP DURING 1995
Countries
Cases which
Cases transmitted
to
the
Clarifications
by:
Six-month
allegedly
occurred
Government during
1995
rule
in 1995
Urgent actions
Normal
actions
Government
Non-governmental
sources
Afghanistan - - - - -
Algeria 20 2 101 - 1
Angola - - - 3 -
Argentina - - - - -
Bahrain 1 1 - - 1
Bolivia - - - - -
Brazil 2 3 - -
Bulgaria - - - - -
Burkina Faso - - - - -
Burundi - - 14 - -
Cameroon - - - - -
Chad - - - - -
Chile - - - 15 6 i C)
China 3 3 - 19 2
H
Colombia 16 20 13 1 1
Dominican - - - - -
Republic
Ecuador 3 3 - 2 2
Egypt - - 7 - -
Countries
Cases which
Cases transmitted
to
the
Clarifications
by:
Six-month
allegedly
occurred
Government during
1995
rule
in 1995
Urgent actions
Normal
actions
Government
Non-governmental
sources
El Salvador
Equatorial
Guinea
Ethiopia - - 1 - -
Guatemala 4 7 - 4 2 5
Guinea - - - - - -
Greece
Haiti - - - - - -
Honduras - - - - 1 -
India S 5 5 1 2 3
Indonesia - - - 2 - -
Iran (Islamic 1 1 - - - 11
Republic of)
Iraq - - 226 - - 13
Israel - - 1 - 1
Kazakhstan - -
Kuwait
Lao People's
Democratic
Republic
Lebanon
c u
1 n
0 ‘
H
0
0
w
30
Countries
Cases which
Cases transmitted
to
the
Clarifications
by:
Six-month
allegedly
occurred
Government during
1995
rule
in 1995
Urgent actions
Normal
actions
Government
Non-governmental
sources
Libyan Arab
Jamahiriya
Mauritania - - - - - -
Mexico 21 23 - 15 5 13
Morocco - - 2 50 - -
Mozambique - - - - - -
Myanmar
Nepal - - - - - -
Nicaragua - 1 1 - - -
Nigeria 2 2 - 2
Pakistan 31 32 - - - -
Paraguay - - - - - -
Peru 3 2 1 1 2 9
Philippines 1 1 - 3 - 12 L'l
J
1 n
Romania - - - - - - (B
0 ‘
Rwanda
0
SaudiArabia - - - - - -
Seychelles - - - - - -
South Africa - - - -
Sri Lanka 36 36 4 3 -
Sudan 252 2 252 - 1
Countries
Cases which
Cases transmitted
to
the
Clarifications
by:
Six-month
allegedly
occurred
Government during
1995
rule
in 1995
Urgent actions
Normal
actions
Government
Non-governmental
sources
Syrian Arab 2
Republic
Tajikistan - - - - - -
Thailand - - - - - -
Togo - - - - - -
Turkey 9 14 3 13 7 -
Turmenistan 2 2 - - - -
Uganda - - - - - -
Uruguay - - - - - -
Uzbekistan 2 2 - - - -
Venezuela 1 1 1 - - 1
Yemen - - - - - -
Zaire - - - - - -
Zimbabwe - - - - - -
c u
1 n
O
OH
0
0
w
C D
S
S
C D
S
C )
o w
S
LI 1
S
0 ”
S
L I I
CD
ow
G)L'I
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w
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0
0
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(B
ow
O
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0
L I I 0
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LII
CD
Countries
Cases transmitted to the
Government
Clarifications by
Status of person at date
of clarification
Total
Outstanding
Government
Non-
governmental
sources
At
liberty
In
detention
Dead
No. of
cases
Female
No. of
cases
Female
Afghanistan 2 - 2 - - - -
Algeria 104 2 103 2 - 1 1
Angola 7 1 4 1 3 3
Argentina 3 462 771 3 385 750 43 34 49 - 28
Bahrain 1 - 0 - - 1 1 -
Bolivia 48 S 28 2 19 1 19 1
Brazil 57 3 51 3 S 1 1 2 3
Bulgaria 3 - 0 - 3 - - - 3
BurkinaFaso 3 - 3 - - - - - -
Burundi 45 - 45 - - - - - -
Came roon 6 6
Chad 6 - S - 1 - - - 1
Chile 912 68 868 68 21 23 2 - 42
China 56 5 11 2 39 6 35 9 1
Colombia 949 84 744 69 153 52 126 18 61
Dominican 4 - 2 - 2 - 2 - -
Republic
Ecuador 20 2 5 0 11 4 3 6 6
Egypt 15 13 2 2
c u
1 n
STATISTICAL SUMMARY
Cases of involuntary disappearances reported to the Working Group between 1980 and 199S M
Countries
Cases transmitted to the
Government
Clarifications by
Status of person at date
of clarification
Total
Outstanding
Government
Non-
governmental
sources
At
liberty
In
detention
Dead
No. of
cases
Female
No. of
cases
Female
El Salvador 2 638 329 2 259 293 318 61 190 175 14
Equatorial 3 - 3 - - - - - -
Guinea
Ethiopia 101 2 100 1 1 - 1 - -
Guatemala 3 151 396 3 012 373 61 78 85 6 48
Guinea 28 - 21 - - 7 - - 7
Greece 2 2
Haiti 48 1 38 - 9 1 5 4 1
Honduras 196 34 129 21 30 38 48 13 7
India 232 8 201 7 25 6 9 5 17
Indonesia 418 30 368 27 38 12 40 8 2
Iran (Islamic 509 98 508 98 - 1 - 1 -
Republic of)
Iraq 16 131 2 291 16 007 2 274 107 17 100 3 21
Israel 3 2 1 1
Kazakhstan 2 - 2 - - - - - --
0
Kuwait 1 - 1 - - - - - -
Lao People's 1 1
Democratic
Republic
Lebanon 279 15 274 15 - S S - -
Libyan Arab 1 1
Jamahiriya
Countries
Cases transmitted to the
Government
Clarifications by
Status of person at date
of clarification
Total
Outstanding
Government
Non-
governmental
sources
At
liberty
In
detention
Dead
No. of
cases
Female
No. of
cases
Female
Mauritania 1 - 1 - -
Mexico 314 24 243 20 62 9 24 S 42
Morocco 233 28 157 26 50 26 61 1 14
Mozambique 1 - 1 - - - - - -
Myanmar 2 - 0 - 2 - 1 1 -
Nepal 6 - S - - 1 1 - -
Nicaragua 234 4 103 2 112 19 45 11 75
Nigeria S 1 0 - S - S - -
Pakistan 53 - 52 - 1 - 1 - -
Paraguay 23 1 3 - 20 - 19 - 1
Peru 2 879 305 2 253 231 245 381 440 84 102
Philippines 647 80 507 60 109 31 100 17 23
Romania 1 - 0 - 1 - 1 - -
Rwanda 8 - 8 - - - - - -
Saudi Arabia 1 1
Seychelles 3 - 3 - - - - - -
South Africa 11 - 7 - 2 2 1 1 2
Sri Lanka 11 479 127 11 415 125 30 34 31 17 16
Sudan 260 33 257 33 3 3
Syrian Arab 35 3 15 3 7 13 15 5
Republic
c u
1 n
o
0
0
w
Countries
Cases transmitted to the
Government
Clarifications by
Status of person at date
of clarification
Total
Outstanding
Government
Non-
governmental
sources
At
liberty
In
detention
Dead
No. of
cases
Female
No. of
cases
Female
Tajikistan
Thailand*
Togo
Turkey
Turkmenistan
Uganda
Uruguay
Uzbekistan
Venezuela
Yemen
Zaire
Zimbabwe
6
2*
11
132
2
20
39
3
10
98
24
1
-
2
10
0
4
7
-
2
-
1
-
S
0
10
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p2ge 116
SRI LANKA
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